Supreme Court Vacancy/Nominations

[Mavric]

Separate from the discussions about Scalia, eventually there will be a replacement.

 

This seems to sum up the situation pretty well, for both sides:

 

No. 1: No nominee for the high court can get through the Senate before the election. No one.

No. 2: President Obama and the Democratic candidates for president know that. So do Republicans. All God’s children know it.

No. 3: Since the nominee will not be approved, Obama will use the opportunity to advance other goals. He will propose someone who burnishes his own progressive credentials and shows why control of the court depends on the November election. Putting Senate Republicans in an awkward position would be a nice bonus. But the target is November.

No. 4: Obama will nominate someone whose demographic characteristics help in the contests for president and U.S. Senate. That is not just his main criterion. It is his only one. The candidate could be from a purple state. Or a Latino. Or openly gay. Having finished law school would be a plus.

No. 5: The proposed candidate will not receive a Senate vote before the election or in the lame-duck session. If Mitch McConnell even considered it, he would become the former majority leader.

No. 6: Democrats and Republicans will both use the issue to show voters why it is crucial to elect them -- and not the other party. Democrats will add that this again shows we have a "do nothing" Congress. Republicans will say it shows we have “do too much” judges.

No. 7: All the rest is political theater, full of sound and fury, signifying nothing.

 

Real Clear Politics

[knapplc]

I don't think it's accurate to say that no nominee will be approved. In fact, history says otherwise.

 

The Senate has never taken more than 125 days to vote on a successor from the time of nomination; on average, a nominee has been confirmed, rejected or withdrawn in 25 days.

 

http://www.nytimes.com/interactive/2016/02/13/us/how-long-does-it-take-to-confirm-a-supreme-court-nominee.html?_r=0

 

There are over 300 days between now and the end of Obama's term. That means he could nominate three different people, all of whom would be at or nearly tied with the longest it has ever taken for a Supreme Court nominee to be approved, in succession, between now and the end of his term.

 

Failing to approve a reasonable candidate - or, as the link in the OP seems to indicate, three successive candidates taking historically long times to approve - would be seen as obstructionist by the voters. It would be disaster for the Republicans. I would nearly guarantee they will not go down that road.

[Mavric]

Counting how long it takes to vote on a nominee is only one part of the process. One has to be nominated first. And even then that's assuming the vote is to approve the nominee.

 

We found Blumenthal's 237-day gap. It began when Lewis F. Powell Jr. retired on June 26, 1987. It took nearly eight months to find a replacement. Ronald Reagan's first choice, Robert Bork, was rejected by the Democratic Senate, mostly along party lines. His second choice, Douglas Ginsburg, withdrew after admitting he used drugs, both as a college student and later as a professor at Harvard.

Anthony Kennedy, Reagan's third choice to fill Powell’s seat, was confirmed without opposition by the Senate on Feb. 3, 1988. He was sworn in Feb. 18, 1988.

We found a longer vacancy, though it falls outside of Blumenthal's 30-year window.

When Justice Abe Fortas resigned on May 14, 1969, 391 days passed before his successor, Harry Blackmun, was sworn in on June 9, 1970. That was nearly 46 years ago.

Once again, a Republican president -- in this case, Richard Nixon -- failed to get his first two nominees approved by the Democratic-controlled Senate, although neither vote was on strict party lines.

 

Link

 

So it's not at all unheard of. And that's before account for the fact that these situations have become (seemingly) more political than they were in previous years.

[knapplc]

So we all basically agree that it's highly unlikely that an appointment wouldn't be completed and installed by the end of Obama's term, unless an historic "thing" happened.

 

While not unheard of, it's tremendously rare to the point of being difficult to find, even over the past nearly 50 years.

[Sargon]

History tells us what? History tells us a Dem Senate has NEVER confirmed a Rep President's nominee made in his lame duck year. Ever. In history.

 

(1880 was AFTER the election where Rep held on to Pres and also the Dems lost the senate)

 

So, since D Senates have NEVER done it, there's no relevant precedent (not that that matters they can block block block, and they want to, so they will).

[Moiraine]

History tells us what? History tells us a Dem Senate has NEVER confirmed a Rep President's nominee made in his lame duck year. Ever. In history.

 

(1880 was AFTER the election where Rep held on to Pres and also the Dems lost the senate)

 

So, since D Senates have NEVER done it, there's no relevant precedent (not that that matters they can block block block, and they want to, so they will).

This tells me almost nothing. How many times have Republican presidents attempted to nominate a supreme court justice with 12 months left in their final (or potential final) year? I have no idea. But saying something happened 0 out or 2 times is not the same as saying something happened 0 out of 50 times.

 

Also there needs to be a cut off. Should we include times when a justice died in January? December? November? October? September? August? At what month before the end of the term do we cut it off?

 

Denying a January nomination 1 month before the end of a presidency is not the same as doing it 12 months beforehand.

[84HuskerLaw]

The term of the court ends in June, just about 3 months or so from now and no nominee has even been nominated yet. There would be no need to rush through the consideration and vetting process since the new justice would not likely participate in many or even any potential decisions in this term as he or she has not even sat on the court during the presentation of cases, etc.

 

Assuming the President had submitted a list of possible nominees six months ago or more and the membership of the Senate and relevant committees had oppportunity to vet them, maybe possible to consider. However, considering the President's serious antagonism with the Congress and unwillingness to work with them on any issue and all the badmouthing he has done for all these years, why would the Senate even consider the nominees.

[zoogs]

Ha, oh man.

 

Who has been unwilling to work with whom?

 

Who has been doing the bulk of the badmouthing?

 

Obstructing the President has been Republican Party strategy since he before he took office. This is no different. It's a legitimate tactic within their power to employ. I don't suspect the Democrats would have been nobler or better with the situations reversed. But it's wrong either way.

 

There's zero reason, sans political usefulness for a party, for a Supreme Court seat to go unfilled without nomination for eleven months.

 

We should all know by now that the GOP is looking out for the GOP. They don't much care how much time the government spends functioning, or whether it gets (literally) shut down. If they pursue this and learn a hard, hard lesson this November, I hope it lets cooler heads take over. It's better for the country when both parties are sane and able to work together.

[Sargon]

Dems have NEVER done it. Ever.

 

R's are not going to do it this year, my D buddies.

 

The end.

[Moiraine]

Dems have NEVER done it. Ever.

 

R's are not going to do it this year, my D buddies.

 

The end.

You haven't answered my question. The democrats never doing it is not a good reason on its own. How many chances have they even had to do it? How many times has the senate waited 12 months to approve a nominee?

 

That being said I agree that it won't happen.

[zoogs]

^ There's a point there that norms are subject to change. The question is whether the people of this country accept this proposed elevation of partisanship or reject it, and if they reject it, on whom the blame will go. And then, of course, whether that will be expressed in an election.

 

http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/

 

The 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.

I'm only reading up on the history; I'm not a SCOTUS expert, by a long shot. So please, Sargon, since you've made this claim repeatedly:

 

History tells us what? History tells us a Dem Senate has NEVER confirmed a Rep President's nominee made in his lame duck year. Ever. In history.

When was the last time a Republican President tried to make a nominee in his lame duck year, and failed?

[Moiraine]

^ There's a point there that norms are subject to change. The question is whether the people of this country accept this proposed elevation of partisanship or reject it, and if they reject it, on whom the blame will go. And then, of course, whether that will be expressed in an election.

 

http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/

 

The 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.

I'm only reading up on the history; I'm not a SCOTUS expert, by a long shot. So please, Sargon, since you've made this claim repeatedly:

 

History tells us what? History tells us a Dem Senate has NEVER confirmed a Rep President's nominee made in his lame duck year. Ever. In history.

When was the last time a Republican President tried to make a nominee in his lame duck year, and failed?

 

 

And how many months were left when the seat became vacant.

[Moiraine]

I guess I had to do the leg work. It was real hard to find.

 

https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States

 

The following are all failed nominees since 1895. I'm guessing we don't care what happened before then. The parties were completely different. None of these failed to be voted on for reasons of it being a lame duck year. I have no data on nominees that were not even considered. Probably because that's never happened, either.

 

John J. Parker 1930 Hoover Rejected, 39–41

Abe Fortas 1968 L.B. Johnson Withdrawn††

Homer Thornberry 1968 L.B. Johnson Nullified†‡

Clement Haynsworth 1969 Nixon Rejected, 45–55

G. Harrold Carswell 1970 Nixon Rejected, 45–51

Robert H. Bork 1987 Reagan Rejected, 42–58

Douglas H. Ginsburg 1987 Reagan Withdrawn

Harriet Miers 2005 G.W. Bush Withdrawn

 

 

 

 

As of 2010, 151 people have been nominated to the U.S. Supreme Court. Twenty-nine nominees (including one nominated for promotion) have been unsuccessful on at least the first try. Of those 29:

• 12 were fully considered and formally rejected by the Senate.
• 7 (including a nomination of an Associate Justice for Chief Justice) were withdrawn by the President before a formal consideration could be taken by the Senate.
  • One of these nominations was withdrawn because of the Ineligibility Clause, but was confirmed after its applicability was no longer an issue.
• 5 had no action taken on them.
  • One of these was because of a change in the Presidency, but the nomination was resubmitted by the incoming President and confirmed.
• 3 had formal votes on the nominations that were postponed.
  • One of these nominations was reconsidered after a change in Senate composition and confirmed.
• 2 had nominations nullified by other circumstances without being formally considered.

[Sargon]

Moiraine I'll answer your direct question second if you don't mind but first say what is more important.

 

The D's in DC have been increasingly win at all times with any means possible, and it has been growing since the 60's or 70's. More and more R's see this. This has included a leftist judicial activism. It also includes with Pres O regular usurpations of power (terrible Iran deal should be a treaty but since it sucks O couldn't get votes so he did a non treaty treaty, for example).

 

So the 4-4 court now is of paramount importance to the anti-left to be sure it does not go 5-4 activist left (any nominee from O will be an activist there aren't any non-activist D judges alive anymore (close enough)). D's in DC have been moving towards a pragmatic win always any way possible strategy and by 2009 it had reached a new high (low really but you know...). Some R's in DC fully understand this. The rest I think understand something else that is motivating; that they will be voted out if they fail to win this important battle that is trivially simple to win. So, they're going to win it and it's important.

 

To see the info re your question....

 

Here's the nomination history.

http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm

 

Here's the party power timeline.

https://upload.wikimedia.org/wikipedia/commons/7/72/Combined--Control_of_the_U.S._House_of_Representatives_-_Control_of_the_U.S._Senate.png

 

 

Just look for 2008 2004 2000 down the list. 1880 you might think you found one but nope you didn't. Nomination and confirmation both occurred AFTER the election of a new R Pres and also the sitting D senate lost control in the election. So, nomination and confirmation POST election AND the election Winner got it's nominee.

 

Lincoln was the first R Pres so 1864 is the beginning year for this analysis.

[Moiraine]

Moiraine I'll answer your direct question second if you don't mind but first say what is more important.

 

The D's in DC have been increasingly win at all times with any means possible, and it has been growing since the 60's or 70's. More and more R's see this. This has included a leftist judicial activism. It also includes with Pres O regular usurpations of power (terrible Iran deal should be a treaty but since it sucks O couldn't get votes so he did a non treaty treaty, for example).

 

So the 4-4 court now is of paramount importance to the anti-left to be sure it does not go 5-4 activist left (any nominee from O will be an activist there aren't any non-activist D judges alive anymore (close enough)). D's in DC have been moving towards a pragmatic win always any way possible strategy and by 2009 it had reached a new high (low really but you know...). Some R's in DC fully understand this. The rest I think understand something else that is motivating; that they will be voted out if they fail to win this important battle that is trivially simple to win. So, they're going to win it and it's important.

 

To see the info re your question....

 

Here's the nomination history.

http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm

 

Here's the party power timeline.

https://upload.wikimedia.org/wikipedia/commons/7/72/Combined--Control_of_the_U.S._House_of_Representatives_-_Control_of_the_U.S._Senate.png

 

 

Just look for 2008 2004 2000 down the list. 1880 you might think you found one but nope you didn't. Nomination and confirmation both occurred AFTER the election of a new R Pres and also the sitting D senate lost control in the election. So, nomination and confirmation POST election AND the election Winner got it's nominee.

 

Lincoln was the first R Pres so 1864 is the beginning year for this analysis.

 

That list nullifies the point you were trying to make, and you didn't answer the question. I had to look everything up. The Democrats never confirmed a nominee during a lame duck year - they've also never had that opportunity to do so in the modern era. So there really is no point to be made.

 

Souter retired in 2009 (Obama: 2008-2012)

White retired in 1993 (Clinton: 1992-2000)

Whittaker retired in 1962 (Kennedy: 1961-1963)

Van Devanter retired in 1937 (Roosevelt: 1933-1945)

 

The Democrats have never confirmed a nominee during a Republican's lame duck year because no nominee has ever been made during a Republican president's lame duck year in at least the past 83 years if I'm reading this correctly. No justice has retired/died during a Republican president's lame duck year as far as I can tell. I'm not looking back further. So saying the Democrats have never let one through is utterly meaningless. If you can't see how the point you were attempting to make by looking at the above list was completely ridiculous then there's no more point in talking to you on the issue.

 

Furthermore, I'm not understanding any complaint about the Supreme Court by the Republican party. Clinton and Obama together had 4 nominees. 13 of the past 17 have been nominated by Republican presidents. Republicans have had every opportunity to put right-leaning justices on the bench, and have done so.