Are Republicans forcing a Constitutional Crisis? Should Democrats hold the line...

[Meldread]

Are Republicans forcing a Constitutional Crisis? Should Democrats hold the line against Republicans, and clearly state that if they refuse to vote for a qualified SCOTUS nominee made by Obama, that they will refuse to accept any nominees made by a Republican should one become President? Should Liberals and Leftists demand that Democrats hold the line against Republicans, and threaten to primary any Democratic Senator who breaks that line?

What will be the Democratic, Liberal, and Leftist response to Republicans refusing to even allow an Obama appointee an up or down vote? Surely, we are not just going to stand back and accept their obstructionism? What consequences are we going to place on Republicans?

[jeff47]

1. I think Obama should nominate a series of judges

each one a member of a minority group the Republicans need to start winning back. And let the Republicans block them.

And I think Schumer needs to start talking about doing away with the filibuster completely. The Republicans can either get a little influence now, or zero influence in 2017.

[SickOfTheOnePct]

2. Filibuster won't even play into this n/t

[TDale313]

5. I think Cruz has already said he plans to filibuster.

Now, whether that makes sense in this case I don't know.

[SickOfTheOnePct]

15. There's no need for a filibuster

When a nomination doesn't make it out of the Judicial committee. That's how the Republicans will stop a vote - stop any nomination from even getting to the Senate floor.

[TDale313]

17. That may well be.

But he's still already threatening it.

[longship]

25. Well! Duh! The majority party does not need to filibuster!

That is a minority party tactic to block a vote unless the majority has the votes for cloture.

It is fucking useless when the majority does it because they can outright prevent the vote in the first place.

Then again, Crux is a fucking idiot for thinking a filibuster does any good when one's in the majority.

[jeff47]

8. For the moment. It is likely we'll have the majority again in 2017.

The senators up for election this year were elected in 2010. That Republican wave produced a lot of Senators that are vulnerable in a more balanced electorate.

[TDale313]

18. That's my hope for a lot of things.

The math seems favorable for us to retake the Senate. That will make a difference.

[MohRokTah]

4. I still say Sri Srinivasan is the best choice

Republicans MUST hold onto Indian Americans as that is the only minority demographice where they have a majority.

If they piss off Indian Americans, they have no minority demographics moving forward, and Sri Srinivasan is extremely qualified for the position. McConnell, Cruz, and Rubio all voted to confirm him for the DC Court of Appeals.

[Meldread]

10. I don't necessarily think that is the most effective way...

I mean, certainly, I agree appointing more minorities to the SCOTUS is important and should be a Democratic prerogative. However, speaking as a minority, we don't actually look at people on a superficial level and get angry when they are blocked. We actually care about issues as well, and we get angry when qualified people get disqualified simply on the basis of their minority status. See, as an example, the fight to nominate Tracy Thorne-Begland for a Judgeship in Virginia. Keep in mind, as you read the article, that he would have overseen what was effectively traffic court--ruling on speeding tickets and the like.

Understand, it would be silly to simply assume that because Clarence Thomas is black, that Democratic opposition to his nomination was somehow based in racist sentiment. Black folks are actually smart enough to know the difference between racism, politics, and the difference of views on jurists. Republicans have already stated that they are going to block any nominee to the SCOTUS Obama makes BEFORE he has made it. Attempting to paint them as racists or bigots simply won't work, because they can point back to their previous statements on the matter, making it clear that it has nothing to do with race or whatever other minority status, rather than the fact that Obama appointed that person.

If you want to stimulate minority groups in a judicial fight, then it is important to nominate someone (regardless of their minority status) who has fought for minority issues to the Court. Simply nominating a minority and expecting minority people to rally behind said minority simply because they happen to share a minority status is silly. I wouldn't rally behind a Log Cabin Republican nominee to the SCOTUS, despite the fact that we'd both be gay.

[jeff47]

11. It's not a formal proposal, and uses "minority" as a shorthand

for what you describe - nominate judges such that the rejection of those judges hurts Republicans with everyone but their ever-dwindling base.

[Meldread]

19. Then it makes sense to...

Nominate someone like Pam Karlan.

She is extremely strong on voting rights (important to African Americans) and queer rights (important to the LGBT community). She would activate the liberal base behind her nomination, and play well with other minority groups. By nominating someone like her, Republicans will drop their line of obstructionism for obstructionism's sake, and completely lose their minds because she is a real liberal. They will attack her on the merits, which then allows us to politically pivot and make it about her qualifications, if that is the ground on which to fight.

After all, we can't fight on both issues: Either Republicans are obstructing because they want to appoint a far right judge to replace Scalia, or they are opposed to the nominee based on the nominee's record.

Additionally, if he nominates a far left justice, it opens up the room for compromise later down the road, allowing us to default back to the obstructionism argument if the first one fails to get traction in our favor. It also allows the compromise to be much further to the left, as even a minor rightward shift looks like a compromise after someone like Pam Karlan. It effectively means another Justice Kagen on the SCOTUS if he fails to get Karlan through.

[TDale313]

3. If the only two choices they leave him/us with

Are see the seat left vacant cause they won't confirm or to send them a far right name, then I think Obama should look for the best nominee he can- eminently qualified, left or center left- and then when they refuse to confirm beat them over the head with their obstructionism and we need to work like hell to elect a Dem president and Senate that can fill the vacancy.

He should not, IMO, send them a name that's conservative enough that he thinks he can peel off a few votes. A) I don't think it would work and B) If it does we're stuck with a Conservative Justice and that's worse than the vacancy IMO

[GoneFishin]

7. But the very thing you mention that he should not do is precisely what he has done for 7 years.

Sadly.

[TDale313]

9. I know

I will say he seems over the last year or so to have come to terms with the fact that they're never gonna work with him and decided to figure out ways to work around them.

[GoneFishin]

12. We can always hope.

[Meldread]

14. I agree.

I think we should put pressure on Obama to nominate someone like Pam Karlan.

If he fails to get her through, and has to make another nomination, any rightward shift in the nominee looks like a compromise. It makes it more likely that he will get an even MORE liberal Justice through than if he immediately caves and goes for someone center-right--compromising immediately out of the gate.

We are also going to need an EXTREMELY strong liberal voice on the Court, as RBG likely isn't likely to remain through the term of the next President.

[GoneFishin]

6. What he should do is nominate a long list of progressive judges and plan on a long spell with only

8 justices. But that would actually serve the citizenry not big money.

So what he will do is cave.

The set up is perfect. I can hear it now.

"Well, sure he sides with big business on every case but he was the best the President could do at the time because Republicans."

[Meldread]

13. I agree.

It's the reason I think we should put pressure on him to nominate someone like Pam Karlan.

If he fails to get her through, and has to make another nomination, any rightward shift in the nominee looks like a compromise. It makes it more likely that he will get an even MORE liberal Justice through than if he immediately caves and goes for someone center-right--compromising immediately out of the gate.

We are also going to need an EXTREMELY strong liberal voice on the Court, as RBG likely isn't likely to remain through the term of the next President.

[cloudbase]

16. There will not be a constitutional crisis.

There is no time limit within which the senate must act to confirm a president's nominee.

Obstruction makes political sense in pandering to their core voters, but for those in the middle it will be seen for what it is.

[Meldread]

20. That entirely depends on the Democrat's reaction...

...what happens if they are successful in preventing Obama from appointing Scalia's replacement? How will Democrats react in 2017?

What happens if a Republican wins the White House and Democrats control the Senate? What happens if a Republican wins the White House and still control the Senate? What repercussions should their be toward Republicans for refusing to accept Obama's nominee?

My point wasn't that Republicans are causing the Constitutional Crisis, but rather Democrats should threaten one by refusing to accept ANY Republican nominee to the SCOTUS should a Republican take control of the White House, if they refuse to accept Obama's nominee.

[davidn3600]

23. It's not going to be a "crisis"

It is not a constitutional crisis at all. The Constitution specifically defines the Senate's role of advise and consent. If the President nominates someone to the court, the Senate can reject them. They can also make them wait forever.

The Congress can also change the number of justices. In fact, that's what they did in 1866 to prevent President Andrew Johnson from nominating people to the court. They changed the number of justices to 7. Then when Johnson left office in 1869, they changed it to 9 where it has sat since.

That's all 100% constitutional. It's been done before.

As for political implications....they will take the risk. Scalia was the most conservative member of that court. They aren't going to allow Obama to nominate a liberal to fill it. It's as simple as that. As for what happens next year, they will cross that bridge when they get there.

[TeddyR]

28. This is one of the

Most logical, reasoned posts I've seen on the Scalia issue.

[craigmatic]

21. We'll kick their asses in this election first off. Next we get back the senate and stack the court

just like FDR wanted.

[Initech]

22. If they try to block any nominations, it will make them look foolish and stupid.

They have to follow the Constitution or they'll get chewed out for abuse of power.

[IDemo]

27. Make them look foolish and stupid?

How would one tell?

[TeddyR]

29. If they refuse to confirm a nominee

By saying voting against that nominee they will have fully complied with their constitutional obligation. Obama gets to nominate, the senate gets to confirm or not. There's nothing that requires they confirm or that the Supreme Court even have 9 members.

[backscatter712]

24. The Republicans will find it hard to keep obstructing as it gets closer to the election.

Obama and other Dems won't hesitate to paint them as obstructionists and as being incapable of governance.

My prediction: they'll fight and fight and fight for months, and Obama may end up switching nominees once or twice, but eventually, the GOP will be forced to confirm a nominee, so they don't get hit with it as the general election looms.

[Meldread]

26. I actually believe that they will eventually cave as well.

Had Scalia kicked the bucket in the fall sometime, they might have been able to pull it off. However, we are literally looking at an entire year of obstruction, and it's going to be ugly and contentious. It is hard to imagine that they can holdout that long if Democrats really apply the pressure. This is not like them blocking some low level appointment, or even an appointment to one of the Circuit Courts. This is going to be in the news, under the microscope, and all eyes will be on every movement and fidget. There is a huge investment in both the left and the right. It is hard for me to imagine them holding out an entire year.

It's not even clear that this is a good strategy for them in the short or long term. Right now, they could probably get a right leaning centrist Kennedy-style Justice to replace Scalia. They could probably negotiate Obama down to that point. However, they are banking on the fact that not only will a Republican be in the White House to make the nomination next year, but that they will still control the Senate to confirm said nominee. The Senate map is in the Democrat's favor, and because of this SCOTUS issue there will be an even greater focus on Senate races than normal. This likely increases the likelihood that the Democrats retake the Senate, meaning that even if a Republican makes it to the White House, they have to get their Justice past the Democrats. Democrats are not going to vote for a Scalia.

Not only that, if everything works out favorably for the Republicans, they keep the Senate, and take the White House, it won't be until next year this time when a Republican President is making the nomination. That is an entire year. It is also certain, by this point, that the tension will be so high that Democrats will almost certainly have to be opposed to ANYONE they nominate. This sets up an ugly battle in the Senate, essentially sucking up important time in the first 100 days of a Republican Presidency fighting over who they get to appoint to the SCOTUS--and even then, it is almost certainly not going to be as someone as far right as Scalia. The best they would be able to get through would be a Roberts-style appointment. This is still extremely awful, but it isn't a Scalia... and this is with all the cards in their favor.

It probably makes more sense from the Republican perspective to force Obama to nominate someone center right, then bank on the fact that (due to age and health reasons) that a two term Republican president is likely to appoint three justices to the court. This is truly in the cards if the Republicans win the Presidency.