Anthony Kennedy put on Court in final year of Reagan's presidency
Can Senator Majority Leader Mitch McConnell (R-KY) really block and prevent a nominee to the US Supreme Court because its an election year?
Well, technically he can try and he might succeed in doing so and the Constitution does not give guidance of how long “advice and consent” can take. And the Senate GOP could filibuster a nominee?
Politically, however, its a nightmare….
First, the Supreme Court will have 8 Justices for at least 14 months, which means much of next year’s Supreme Court docket will decided by 3 liberals (Ginsburg, Sotomayor, and Kagan) and 3 conservatives (Roberts, Thomas, and Alito) and two men, Breyer and Kennedy, who will sway the direction of the Court. Both Breyer and Kennedy have swung to the left on family issues more often than not and Justice Kennedy has not been a consistent standard bearer for conservative family values, the death penalty, parental rights, pornography, use of treaties to interpret the Constitution, rights of enemy combatants, and global warming. You want to know how not “conservative” Justice Kennedy is? Read his dissent in Blakeley v. Washington www.law.cornell.edu/…. It is not the Federalist Society way. The chance that conservatives will want a lot of 5-3 and 6-2 rulings (Roberts might try to narrow decisions by joining in with the majority) going against them is not going to enamor the political right and the advocates of obstructionism.
Second, the Court itself is going to be upset by the politicization of it. Only a handful of Justices have died while sitting www.washingtonpost.com/… on the bench. A short seat creates a lot of problems for SCOTUS and its docket. Some cases will be put on hold (and leave in place lower Court rulings) and others will have to be re-argued. A lot of Court decisions will be problems between now and June (even if a nominee is ultimately voted on and approved). Then comes October and the new term. The President will not be able to nominate a Justice until January and that process might take 3 weeks to 3 months. Virtually all the argument and briefing will be done which means the new Justice won’t participate in the decision. That means a lot of potential 4-4 decisions.
Third, if you are okay with a SCOTUS case backlog and more liberal than conservative opinions (or 4-4 opinions that either leave liberal decisions in place or are so embroiling that the political left finally takes fighting right wing nominees to the judiciary seriously, i.e. they use right wing political tactics to fight them); consider the Senate Election class for 2016. It looks like this right now. www.centerforpolitics.org/…. Senate Republicans are defending lot of states and WI, PA, IL, OH, FL, and NH have trended Democratic in Presidential years as has NV and CO where the Democrats must defend two less than safe seats. So you might have a Democratic Senate or a much tighter Republican Senate. Now what? A Democratic President Clinton or Sanders getting a nominee through or a GOP President Cruz, Trump, Rubio, Bush, Kasich, or Carson (God Forbid) dealing with Chuck Schumer telling you to go “Screw Yourself” because you did not let an Obama nominee through. While it’s possible that the GOP might keep the status quo (54-46), this does not leave anyone with a filibuster proof majority. And if filling that seat become problematic with a controversial nominee, you take more flak for your foot-dragging. Which leads us to….
Fourth, the nuclear option en.wikipedia.org/... . Getting rid of the filibuster. Completely. Sure we lose a lot of battles but we also win a lot of wars. Particularly on judges, with no holds and no filibusters, law professors, labor lawyers, civil libertarians, and pro-environment attorneys could be sitting on 81 district court vacancies. I think the filibuster has been so abused getting rid of it may be more sellable than reforming it back to its intended purpose (if that can even be defined). And of course….
Fifth, you don’t want to play this game. Okay, I get the bitch about the rules until the rules favor you that has been played out since the nomination of Daniel Manion to the Circuit Court 30 plus years ago. But this is now bigger and the caustic, nasty, obstructionist and quite frankly racist approach to President Obama has created a new reality. And history is no help to you….from the stupid partisan positioning on judicial nominations to the unalterable fact that Anthony Kennedy was sworn in upon being confirmed in the LAST YEAR OF REAGAN’S PRESIDENCY
Sixth, you are screwing your party’s nominees for the President. No, really. Here is the conversation as it currently stands: Six guys running for President who are in favor of precluding the President from appointing judges in the last year of their term; and as a bonus, you get to talk about what a great guy Antonin Scalia was. As much fun it is to defend politically neutering yourself as President and talking about Scalia; from a message standpoint, it’s a loser. The criticism of Scalia only grows as long as we have an empty SCOTUS seat and a plan that calls for not filling it for a year plus. And if anyone is a journalist, any one on one interview is going to have these tidbits:
Will you forgo making SCOTUS appointments in the 4 year of your first term? Obama has had an unprecedented number of judicial nominees blocked and through a constitutionally questionable
blue slip” process and filibustering has done so successfully: Question, do you favor such methods and will you accept similar treatment as just the way it goes? Do you agree with all of Justice Scalia’s opinions? If not, which ones. Justice Scalia was accused of unethical behavior www.forbes.com/…, are you okay with Judges going to events sponsored and paid for by individuals with legal issues pending before the courts? Do you agree with Scalia’s statements about homosexuals www.motherjones.com/…, African Americans www.washingtonpost.com/… and www.nbcnews.com/…, minorities and women generally www.care2.com/….? Would you agree that the Democrats get to fill a vacancy made by Ginsburg or Breyer?
This list goes on but I digress
Do you really want to see the conversation be about doing nothing (with Trump’s demand “Delay, delay, delay!”) and seeing the conversation be about what you expect from the Supreme Court (abortion, death penalty, affirmative action, gay rights, marriage, equal rights, etc.) If the Bork, Ginsburg (Douglas), Kennedy fiasco of 1987-1988 have taught us anything, its less is more with SCOTUS nominees.
Refusing to have hearings and an up or down vote is going to really motivate those millennials to not just vote but to vote against you. And it will motivate feminist, minority voters, first generation Americans, and the LBGT community.
A conversation about SCOTUS and the issues it hears is a lot like talking about the drinking water in your town, its the last thing you want to spend 5 minutes explaining to voters. Because if they knew how important the Supreme Court (or clean water) was and how much they disagree with you about what your thoughts are about it, they might just vote for your opponent.
Quite frankly, Mitch McConnell should very politely ask Obama for a list of nominees and let him know whom he could shepherd through the Senate or just tell Obama “Mr. President, I want an expected Republican President to have the opportunity to appoint conservatives to replace Justices Kennedy, Breyer and RBG (all past 75)…...I know I can get this [the least objectionable judge] person through the Senate”.
