Posts Tagged ‘Antonin Scalia’

So it didn’t take more than an hour or two after Antonin Scalia’s death for Republican leaders to insist that President Obama has no right to nominate a successor to Scalia. It’s all nakedly political, of course, the hypocrisy clear in chair of the Senate Judiciary Committee Chuck Grassley’s shifting views.

Marco Rubio insists that President Obama, with nearly a year to go in his four-year term, is already a “lame duck” president. Look, we all know what this really is: Republicans have never accepted the legitimacy of President Barack Obama. As Amanda Marcotte writes, “Everyone knows the real reason is the conservative base has never accepted that a black Democrat could be a legitimately elected President, and after 7 years of having to live with a President the majority of white voters voted against, Republicans are going to use this as a chance to throw a nationwide temper tantrum.”

But this does set up an interesting dynamic to the 2016 presidential election, as Marcotte explains:

This is especially delicious since the only Republican candidate who has a chance to walk away from this unscathed — maybe even finding a way to turn it to his advantage— is Donald Trump. The two candidates who are currently best positioned to unseat Trump, Ted Cruz and Marco Rubio, are both senators and both have indicated their willingness to join their fellow Republicans in the Senate in blocking whoever Obama nominates, just because he nominated them. The bad loser vibe, where Republicans punish not just Obama but the whole country because they refuse to accept he won the 2012 election fair and square, will rub off on them.

Trump, however, has a real chance here to score some points. Vague promises that he will straighten up D.C. and end all this pointless bickering and gridlock— because he’s a winner who gets things done or whatever empty braggadocio he wants to throw out— and he can set himself apart from Cruz and Rubio, all without actually having to commit to either offending the Obama-hating base or having to endorse the astounding immaturity that has infected every last member of the congressional Republican caucus.

All of which is simply fantastic for whatever Democrat wins the nomination, of course, but there will likely be down ticket effects, too. Every single Democrat running for Congress will be able to point to this story about Republican-caused gridlock and promise that electing them will help ungum the works. It’ll be a simple, effective pitch that happens to have the benefit of being completely true.

Anyway, more folks weigh in on who they think President Obama will nominate for the vacancy caused by the death of Antonin Scalia.

Robert Reich claims to have inside information as to the administration’s thinking:

My mole in the White House tells me Obama will nominate 46-year-old Judge Sri Srinivasan, an Indian-American jurist who Obama nominated in 2013 to the U.S. Court of Appeals for the D.C. Circuit — and the Senate confirmed unanimously. Having confirmed him unanimously just three years ago, it would be difficult (but hardly impossible) for Republicans to oppose him now. (Twelve former Solicitors General, including Republican notables as Paul Clement and Kenneth Starr had endorsed his confirmation. Moreover, the D.C. Circuit has long been a Supreme Court farm team – Scalia himself, along with John Roberts, Clarence Thomas, and Ruth Bader Ginsburg were judges there before ascending to the Supreme Court.)

But is Srinivasan progressive? He had been Obama’s principal Deputy Solicitor General before the nomination, arguing Supreme Court cases in support of affirmative action and against Indiana’s restrictive voter ID law, for example. But this record doesn’t prove much. (Having once worked as an assistant Solicitor General, I know the inhabitants of that office will argue whatever halfway respectable arguments the Justice Department and, indirectly, the President, wants made.)

Before the Obama administration, Srinivasan worked for five years in George W. Bush’s Justice Department. Prior to that, as an attorney in the private firm of O’Melveny & Myers, he defended Exxon Mobil in a lawsuit brought by Indonesians who accused the company’s security forces of torture, murder, and other violations against their people; successfully represented a newspaper that fired its employees for unionizing; and defended Enron’s former CEO, Jeffrey Skilling, later convicted for financial fraud. But in these instances, too, it could be argued he was just representing clients. Another clue: After graduating Stanford Law School in 1995, Srinivasan clerked for two Republican-appointed jurists – Judge J. Harvie Wilkinson III, and Supreme Court Justice Sandra Day O’Connor – both of whom were considered moderate.

Since he became a judge on the D.C. Circuit, he hasn’t tipped his hand. But I discovered one morsel of information that might interest you: In 2000, he worked on Al Gore’s legal team in the infamous Supreme Court case of “Bush v. Gore.”
My suspicion is Obama couldn’t do better than Srinivasan. No other nominee with get a majority of Senate votes. What do you think?

Then there’s the outside-the-box theory that Obama should nominate Nevada Republican governor Brian Sandoval:

Sandoval began his political career in Nevada’s state assembly, before serving on the state gaming commission and as attorney general. He was nominated to a seat on the U.S. District Court by President George W. Bush, on the recommendation of Sen. Harry Reid (D-Nev.) — who may have worried that Sandoval was plotting a bid for Reid’s Senate seat. Sandoval won confirmation by an 89-0 margin; four years later, he quit to run for governor.

The first Hispanic governor in Nevada’s history, Sandoval won re-election in 2014 with more than 70 percent of the vote, after Democrats failed to find a serious candidate to take on the long-shot challenge. He has the political experience of Earl Warren, and the combined political and judicial experience of Sandra Day O’Connor, both of whom were nominated for the high court by Republican presidents — albeit in very different eras.

But Sandoval does not fit the mold of traditional Republican, even in Western states where the party embraces a more libertarian bent. He is unabashedly pro-choice, and he was the only Republican governor to both expand Medicaid and establish a state-run health insurance exchange under the Affordable Care Act. Though he opposed Obama’s signature domestic achievement from the start, Sandoval has said that it became the law of the land after the Supreme Court upheld its constitutionality.

In choosing Sandoval, Obama would have the opportunity to cement another part of his legacy. The candidate who ran under the banner of hope and change is also the candidate who paid for more negative advertisements than any other in history. His fundraising ability virtually single-handedly rendered irrelevant the system of federal campaign-matching funds. Obama is, without doubt, as political as most of his predecessors.

And picking a Hispanic Republican who would likely be blocked by a Republican Senate would have starkly political consequences, especially in the months leading to a presidential election. Republicans are already on thin ice with Hispanic voters, who have voted increasingly for Democrats in recent years: George W. Bush won 44 percent of the Hispanic vote in 2004. Mitt Romney won just 27 percent of the Hispanic vote in 2012.

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We’ll get to SCOTUSblog, but first, Hugh Hewitt:

Lame duck presidents don’t get to make successful nominations for lifetime appointments in an election year. Not in 2016. Not for the past 80 years.

Hmmm. What is the definition of a “lame duck president”? The president in office after the next one has been elected, but before he (or she) assumes office? The president in office during an election year? Two years before the election year? Any time in the second term? The first term? Who knows? Hewitt obviously doesn’t, and he doesn’t care.

And presidents don’t get to make a successful nomination in an election year in the past 80 years? Well, that just isn’t true. There is no genuine precedent for the senate refusing to act on a nomination. As Amy Howe writes at SCOTUSblog, “he historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.”

So Hewitt can’t hide behind “the past 80 years,” or act as though he has the authority of the Constitution. No, he’s just being nakedly political, and that’s really what replace of Justice Scalia is all about. Everyone understands the stakes, and they are high.

That said, Tom Goldstein at SCOTUSblug has an excellent rundown of the politics, and what he thinks is the likely path forward. It’s a good read, but I’ve excerpted the part in which Goldstein describes what he thinks will be the likely nominee:

Overall, in 2012, the white proportion of the voting population decreased to 71.1% and the minority proportion increased to 28.9% (22.8% black and Hispanic). For that reason, many attribute President Obama’s reelection to minority turn-out.

The best candidate politically would probably be Hispanic. Hispanic voters both (a) are more politically independent than black voters and therefore more in play in the election, and (b) historically vote in low numbers. In that sense, the ideal nominee from the administration’s perspective in these circumstances is already on the Supreme Court: Sonia Sotomayor, the Court’s first Latina.

On the other hand, I think the President personally will be very tempted to appoint a black Justice to the Court, rather than a second Hispanic. His historical legacy rests materially on advancing black participation and success in American politics. The role Thurgood Marshall previously played in that effort is inescapable. The President likely sees value in providing a counterpoint to the Court’s only black Justice, the very conservative Clarence Thomas.

For those reasons, I think the President will pick a black nominee. I’ve long said that the most likely candidate for the next Democratic appointment was California Attorney General Kamala Harris. She is fifty-one. A female nominee has significant advantages as well. That is particularly true for the candidacy of the likely Democratic nominee, Hillary Clinton. For reasons I’ve discussed elsewhere, I think her nomination is difficult to oppose ideologically, given her history as a prosecutor.

If Harris wanted the job, I think it would be hers. But I don’t think she does. Harris is the prohibitive favorite to win Barbara Boxer’s Senate seat in the 2016 election. After that, she is well positioned potentially to be president herself. If nominated, she would have to abandon her Senate candidacy and likely all of her political prospects. So I think she would decline.

But Attorney General Loretta Lynch, who is fifty-six, is a very serious possibility. She is known and admired within the administration. At some point in the process, she likely would have to recuse from her current position, but the Department of Justice could proceed to function with an acting head. Her history as a career prosecutor makes it very difficult to paint her as excessively liberal.

Perhaps Lynch’s age would give the administration some hesitancy. They would prefer to have a nominee who is closer to fifty. But because the nomination would principally serve a political purpose anyway, I don’t think that would be a serious obstacle.

The fact that Lynch was vetted so recently for attorney general also makes it practical for the president to nominate her in relatively short order. There is some imperative to move quickly, because each passing week strengthens the intuitive appeal of the Republican argument that it is too close to the election to confirm the nominee. Conversely, a nomination that is announced quickly allows Democrats to press the bumper sticker point that Republicans would leave the Supreme Court unable to resolve many close cases for essentially “a year.”

I think the administration would relish the prospect of Republicans either refusing to give Lynch a vote or seeming to treat her unfairly in the confirmation process. Either eventuality would motivate both black and women voters.

No matter what happens, this election cycle has just gotten a lot more interesting, hasn’t it?

Tom Goldstein, How the politics of the next nomination will play out, SCOTUSblog (Feb. 14, 2016, 5:47 PM), http://www.scotusblog.com/2016/02/how-the-politics-of-the-next-nomination-will-pay-out/

*UPDATE*

National Review chimes in with valuable–and I’m sure, sincere–advice for President Obama: “The President’s best course of action is to simply leave the seat open and allow the American people to have a voice in the future of the Court.” LOL

*UPDATE 2*

And more deep thoughts from Blogs For Victory founder, Matt Margolis:

See? President Obama is an illegitimate president who shouldn’t have the power to do anything. Honestly, this is what people like Margolis think.

The Supreme Court affirms the right of same sex couples to marry, just like heterosexual couples. Conservatives pitch a hissy fit because they can no longer deny other people the same right that they enjoy. And for good measure, Justice Scalia once again demonstrates what an awful person he is.

The Supreme Court rejects the cynical argument that the Affordable Care Act was written in such a way as to destroy itself. The only reason this case was brought to court was to damage the Obama presidency. The plaintiffs didn’t really care about how it would affect them. As I said, cynical. But that’s conservatism in the twenty-first century.

Bristol Palin, paid abstinence spokesperson, is again pregnant out of wedlock. She doesn’t seem too happy about it, and asks that no one lecture her. If only she had taken her own advice instead of, well, spending years lecturing other people, she might find a more sympathetic audience. Instead, she’s just another conservative hypocrite.

Sarah Palin no longer has a job at Fox News. May we never hear from her again.

Donald Trump refuses to release his birth certificate. Another conservative hypocrite. Oh my God, though, the 2016 Republican presidential contest is going to be fun. Talk about a clown car! I think they all take turns driving it, though The Donald no doubt thinks he’s the only one who can possibly drive it correctly.

A black woman is arrested for removing the Confederate flag from the South Carolina state house grounds.

May was the hottest May on record; 2015 on track to be hottest year on record. But nothing to see here.

Over at B4V, Cluster–our dear friend and former blogging colleague (until he couldn’t tolerate dissenting comments about his posts and retreated to a safe haven in which his views are never challenged)–writes in the comments that he is “FUCKING tired of tired of progressives and their penchant to use every damn issue under the sun to hate on white conservatives and divide this country.” He then uses as his sole example a New York Times article titled “White Terrorism Is as Old as America.” The article’s lede?

My grandmother used to speak of Klansmen riding through Louisiana at night, how she could see their white robes shimmering in the dark, how black people hid in bayous to escape them. Before her time, during Reconstruction, Ku Klux Klan members believed they could scare superstitious black people out of their newly won freedom. They wore terrifying costumes but were not exactly hiding — many former slaves recognized bosses and neighbors under their white sheets. They were haunting in masks, a seen yet unseen terror. In addition to killing and beating black people, they often claimed to be the ghosts of dead Confederate soldiers.

Yes, an article that describes the ugly history of terrorism perpetrated by white Americans–namely the Ku Klux Klan–upon Black Americans is equated by Cluster as “hating on conservatives.” Glad we got that one straight.

Did I miss anything else?

P.S. I have to say, it is a bit sad to see conservatives so unhinged that they can no longer even bring themselves to talk to people with whom they disagree. Oh, also, nothing but 107+ degree weather on Cluster’s porch for the foreseeable future. Better get the golfing in early, my friend!