Be careful what you wish for…
As noted by a plethora of postulating punditry, the unexpected death of conservative SCOTUS stalwart Antonin Scalia has provided the GOP a new and critical lead issue to use against each other in the primaries…
And certainly against President Obama and the Democratic nominee once we get to that point. While those on the left are bound to throw fits, it’s almost certain that the GOP controlled Senate will stall on the confirmation hearings and try and leave it to the next president (praying it will be a Republican) and next Senate to address that constitutional requirement.
Delaying is a calculated risk for the GOP, but more on that later.
It’s been mentioned already that the incoming president would have the ability to fill any vacancies on the court, but that was on the back burner among issues in the debates thus far. With liberal justices Ruth Bader Ginsburg at 82, Anthony M. Kennedy at 80, and Stephen G. Breyer, at 78, it was generally anticipated that the current voting justices would present the first openings.
However now with the loss of the anchor voice for strict constructionist conservatism on the court resulting in a four-to-four voting split, we should expect that appointing the next member of SCOTUS will be the lead issue from here until November, especially on the GOP side.
It also gives GOP candidates Ted Cruz, Marco Rubio and Jeb Bush additional ammo to point out that Donald Trump is not a true conservative and would not name an appropriately conservative Justice for the Senate to consider.
In addition it places a critical focus on the Senate and about a half dozen or so crucial races this year. The current Senate is made up of 54 Republicans, 44 Democrats, and 2 Independents ( Bernie Sanders of Vermont and Angus King of Maine).
The two Independents currently caucus with the Democrats so it is effectively a 54/46 split. If the Democrats can pick up a net gain for four seats and the Democrats win the White House (the sitting vice-president would break the tie in a senate vote) and the senate Democrats would be able to confirm a nominee.
And if you feel confident that the minority Republicans would filibuster, remember the “Nuclear Option” is always on the table.
Kelly Ayotte
There are 34 Senate seats open this year; the Republicans are defending 24 and the Democrats are defending 10 so those odds tilt to favor the left. There are legitimately six Republican Senate seats that are very much up in the air; Mark Kirk in Illinois, Rob Portman in Ohio, Ron Johnson in Wisconsin, Kelly Ayotte in New Hampshire, Pat Toomey in Pennsylvania, and Rubio is stepping down in Florida. All of those seats were won in 2010, a mid-term year in presidential politics when the party that holds the White House at the time traditionally falters.
Every one of those six states mentioned also voted Democratic in the last Presidential election.
I am certainly not an expert in the effect of “coattails” by a Presidential candidate in individual states but it is a factor to consider.
If one assumes that Hillary Clinton is going to win the nomination and that she is going to win those six states this November just as Obama did in 2012, then will her “coattails” in those states be long enough to pull some votes over to the Democratic Senate candidates in the Senate elections? The Democrats have strong candidates in every one of the six states in question. Out of the 10 spots the Democrats are defending, Michael Bennett in Colorado looks to be the only precarious one but it’s still very early.
Just something to consider.
The calculated risk I mentioned in the opening paragraph is one the GOP won’t mention publicly but is certainly a consideration behind closed doors.
If they do choose to open hearings and confirm a nominee before Obama leaves office, they have the ability to force the nominee to be a moderate. Obama will have to throw them a bone to get their approval and come up with a name that is palatable to the Right.
If Obama’s “moderate” nominee isn’t confirmed that name will be withdrawn and an incoming Democratic President could offer a new name.
If the GOP waits until the next President is elected and that President is a Democrat with a majority in the Senate, expect a substantially more liberal judge to be the designee. I still think the GOP will delay and force the vacancy to be filled in 2017 but there is a notable risk in that strategy.
It’s important to mention here that a president picking a justice that he or she believes will remain loyal to the same side of the aisle they occupy is a roll of the dice in reality.
President Dwight Eisenhower thought that by picking Earl Warren ( a former Republican Governor that ran in GOP primaries for the presidency in 1936, 1944, 1948 and 1952 and was chosen to be Thomas Dewey’s running mate in 1948) that he was putting a solid conservative on the court.
Eisenhower later would call that the biggest mistake of his presidency.
Byron White
President John F. Kennedy made the same mistake with Byron “Whizzer” White (answer to the trivia question of which member of SCOTUS led the NFL in rushing). President Reagan missed the mark with Anthony Kennedy, President George H.W. Bush erred with David Souter, and the GOP party base are certainly questioning George W. Bush’s appointment of John Roberts.
Because there really is no guarantee of how a justice may vote once he or she puts on the SCOTUS robes.
Finally, for those blog purists who believe that any piece on KC Confidential should have a local connection, we have that here as well.
Sri Srinivasan, frequently named as the most likely choice to be put forward by Obama to replace Scalia and who has already once passed GOP scrutiny when he was confirmed for the D.C. Court of Appeals in 2013 by a unanimous 97-0 vote in the Senate, has a Lawrence, Kansas connection.
Sri attended Lawrence High School while his father was a math professor at KU and played basketball in high school, sharing the court with Danny Manning.
Go Chesty Lions !!!
Godspeed Antonin Scalia and thank you for your service to our country. While I did not share your view of the Constitution, you were an intellectual giant and a formidable and distinguished member of the Supreme Court.
If I was Obama I’d look at an Hispanic. Bury the repubs bythem rejecting an
Hispanic and they drop down to 10 per cent of Hispanic vote.
Stomper: nice article but its essentially a rewrite of my piece that’s appeared
elsewhere and from other pieces where my work appears.
But its good to have another moderate to liberal voice on this blog.
remember one thing….this election rests in the hands of the Hispanic voters
and on election night watch the numbers come in. Hopefully trump gets
the nomination then its landslide city for dems and guys like southy and
wislon and the barrister will be in shock!
Trump can expect about 10 per cent of Hispanic vote which puts him out
of reach of being even close in November.
So nice work…hopefully we’ll see more of yourwriting.
Because we know that k and glaze are great at picking losers!!!!!!!!!!!!!!!!!!!!!!
Nice to see you get up on KCC. Keep up the good work.
thanks for the compliment glaze.
You explained the situation quite well, Stomper.
Nice work.
as far as scalia…he sold his vote on the supreme court thru his family.
He politicized the votes on the court and now that he’s gone the court
can get back to the business the founders wanted it to be.
And as I said….its no loss. We had Roberts on our side and that’s
what probably we needed.
Can’t wait for chuckles to come out with his and his buddies conspiracy
theories about Scalia’s death. It should be realcomedy. Maybe glaze
can put chuckles on stage with his soon to come comments and he’ll
sell more tickets than jj.
Excellent article Stomper.
The calculated risk is that people will realize that those in the GOP arguing for Obama not to put up a nominee are either ignorant because they have never read the constitution or are dumb because they have read the constitution and just don’t understand what simple words contained in the constitution mean.
In my haste to get this piece to Hearne I was a bit shoddy in my research. With regards to the Senate seats being defended by the Democrats, it is actually Harry Reid in Nevada that looks to have the toughest battle in my humble opinion. It won’t be east for Bennett in Colorado either but he should be ok.
isn’t harry retiring?
harry is retiring stomp.
if repubs keep up this crap til November….dems takeback
senate….its tough but can be done.
You’re right Harley. I meant that the Nevada Senate seat will be difficult for the Democrats to defend but thanks for the clarification.
I’m still a little shaken that both you and Chuck have offered compliments on my thoughts but your’s were qualified so I guess the Universe remains in order for a bit longer. 🙂
at least until glaze comes out with his sports picks! (lol)
Perhaps with the shock to the system, cooler heads will emerge. You are right about the Treasure trove to come to the next President and Senate, but I think you are a little off in dealing with Trump. If I am right, he is the sole protest candidate, but you can’t say he is from the right. He is the wrecking ball that declares a pox on all houses, and proceeds to do what he wants.
As far as the courts go, I am a Constitutionalist. As such, I expect Congress, the President, and US Justices to have read that document. I believe it is a living, breathing document, having acquired that life through Section 5 of the document. Otherwise, it is not to be ignored at a whim. I believe that the Eighth, Nineth, and Tenth Amendments trump the Commerce Clause having been written after the Commerce Clause, and I champion the work of Justice Scalia who never had to ask what Congress or the President has in mind about the document’s intent. In my mind, our present Congress and President have added nothing to the document, asnd as such, their interpretations are meaningless. A judge’s oath reads, ” I, __________________, do solemnly swear (or affirm) that I will adminnister justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all of the duties incumbent upon me, as US Supreme Court Justice under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” There is no legislative authority to rewrite laws. There is no enforcement capability. Unfortunately, ther are four branches of government today. What should be three branches of government has become four, when the government ignores the people, and a word to the wise, that fourth branch is the most powerful, being the reason for the existence of the other three. The key is “We the People”.
I can nowsee trump as third party. He hates the repubs and they
hate him. He’d insure the repubs lost because he’d be shooting
his mouth off for 5 months about how bad the repubs are.
In fact….he wants Hillary. He doesn’t want to work that hard as
prez. And who would want to leave the bedroom with a wife like that.
Had trump roast on tv last night. Lisa lampanelli killed it!!!!!!!!!!!!!!!
Mostly a good analysis, but Anthony Kennedy is not a liberal. Just because his name is Kennedy does not make him a liberal. Just because his votes were occasionally not in lockstep with Scalia/Thomas/Alito/Roberts does not make him a liberal.
Another appointment that backfired on Republicans was Eisenhower’s appointment of William Brennan, who by the time he retired from 34 years on the court, was the acknowledged leader of the liberal wing.
True dat Gerald. Just because the Missouri Governor is named Nixon doesn’t make him a conservative either. If you ask staunch conservatives about Kennedy’s swing votes in cases/decisions that promoted gay rights, barring prayer in school, and outlawing the death penalty they might disagree with your assessment. I agree he is not a liberal across the board but purists on the right side of the aisle are not pleased with his resume. Speaking of right wing lockstep, you certainly can’t use that word with Roberts after his Obamacare vote.
yes…an appointment can blowup on people.
Look at Roberts and his votes on ACA (no longer obamacare)…….
and votes on marriage….
And it will continue to blow up on conservatives for a long long time.
I wish I was at NRA offices now….they got to be going bonkers!
But no ones taking anyone’s guns away….just that 80 per cent of America
wants some background checks and common sense gun laws and enforcement
of what is on the books now.
Dwight, hopefully you are at least reading this but if not, maybe Hearne can convince you to offer a piece on the GOP nominating process. I don’t know the true identity of all those who comment here but I’m going to go out on a limb and say that none of the rest of us have actually attended a GOP convention as a real live voting delegate. As such, I think that gives you/Dwight a valuable insight to the process that no one else has here.
The way the GOP delegates are designated and apportioned is not simple. There are three different levels and primaries/caucuses prior to March 15th are proportional in how delegates are awarded. Even though Trump won big in New Hampshire, he only walked away with 10 of the 23 delegates assigned that night. States that are more GOP pure in their elected officials get bonus delegates and I’m of the opinion that those bonus delegates from those Republican states tend to be more establishment. As an example, Oklahoma gets 25 At-Large delegates to the GOP convention while those heathens in California only get 10. In Kansas, Governor Brownback just endorsed the establishment candidate Rubio to the surprise of many who felt he might lean towards Cruz. It now looks like three establishment candidates, plus Trump and Cruz will have the money and ground game to hang around for quite a while and in the process, grab a sizable number of delegates between them in the coming weeks and months. Because so many candidates are going to be dividing up the delegates, it also appears that the odds of Trump or any other candidate having the necessary delegate count (1,237) to clinch the nomination prior to the convention are shrinking.
Delegates to past GOP conventions have shown a propensity to disregard the candidate that came into the convention with the largest number of delegates but not enough to clinch. Conventions are where the establishment often has it’s best opportunity to force its’ will.
These are the reasons why I think Trump and Cruz are going to fall by the wayside and the GOP nomination is still between Rubio and Bush.
Professor Sutherland, please grace us with your insight and opinion on how the GOP nomination is going to play out.
Stomp:
I was an actual voting delegate for Bill Clinton in 1992. We don’t need southy
giving us any information. You’re thinking that Rubio or Bush gets the
nomination is purely shall we say based on a guess like glaze makes in sports
and not actual factual details.
The repubs have caucuses and at large (establishment hacks) and primaries
where they apportion delegates.
The outlook according to Harley is this:
1. Trump can get the nomination. He’s heading into s. Carolina with a lead.
But that lead may not get him the eventual majority of all delegates needed
to get the nomination. Look at the delegate count…that’s each party’s
electoral college. Hillary has a huge majority of super delegates (usually
elected office holders) and that probably what will be her winning numbers.
I haven’t checked recently but she has gotten probably close to 400 to
maybe 15 for bern. Bern knows he can’t beat Hillary splitting delegates
or getting a few more than her because superdelegates are what put Obama
over the top and in the end may put Hillary over the top.
When the republican primary heads south look for trump to win those
states because that’s his country. He drew 20,000 people into mobile
Alabama for a rally. I don’t think he’ll spend money because having heard
and researched the numbers….he ain’t got it. Most of his money is made
in licensing and when he gets the nomination you’ll see this guy is a liar
about his business acumen. Frm all his resorts to his airline to his
vodka to his golf courses …….he’s a lying ******** and won’t be able
to self fund the billion that Hillary can scrape together.
So the little twerp prieus has to get all the candidates in a room
and find one to take on trump. With the other 5 splitting up what
trump doesn’t get trump canbe the nominee. So they all cut a deal…
carson drops out and maybe they give him surgeon general position….
cruz might be given attorney general…but its a huge deal to get one
establishment candidate to face trump and keep him from the nomination.
Trump would be a fool to sue cruz over his citizenship now when he’s splitting
up votes among the dwarf 5.
But if they do that trump moves to third party candidate and the repub
party is history.
Southy and the rest of the repubs know this and I’m sure they’ve seen whats
happening in the African American and latino communities….right now they’re
registering new voters by the thousands so that possibly once repub states
like Georgia and texas might be in play and require repub candidate to spend
money in those states to keep them.
This is not hard…Ive seen the numbers and have seenwhat the possible
outcomes are.
It’s one big bag of s*** because this is where our country has dropped to…
a grab bag for those billionaires who are taking us all the shed.
If you need any further info contact me at law4life1000@yahoo.com.
thanks and good luck
Scalia’s passing is a political football. If the GOP fumbles this situation, and nothing we’ve seen from the party in the last 12 years suggests they are capable of anything but, the ramifications will alter the course of U.S. history.
Unlike my apathetic Gen X, the millenial generation is progressive and they are involved. And they represent the largest voting block. I fully expect the left to utilize the future shaping of the court not only in this year’s elections, but to motivate voters on the left to finally participate in the mid terms and eliminate the obstructionist majority. A 6:3 liberal to conservative majority in the Supreme Court makes the next 30 years a whole lot more interesting for progressive ideals.
The Supreme Court – last pawn in the fleecing of the Constitution.
“strict constructionist conservatism” There is no such thing, the conservatives on the court are every bit the activists they accuse liberals of being, Scalia certainly was.
Great comment James. You bring up a critical topic that deserves attention. In thinking about responding to you, I got in a little deep as far as just commenting here. It deserves some length and depth so I think I’m going to write another piece for Hearne on this. I’m confident it will piss off a large number of people. 🙂
Thanks again for your comment!
Nice piece, nicely done, Stomp.
Thanks Paul, I’ve missed your contributions here.
I haven’t. hahahahaha! Just kidding wislon.
I need another commentator to constantly correct like I
need a hole in the head!
I’ll be back. Making a career change, starting a new business, just a little busy….
good luck wislon. So I can’t say you sell boxes anymore?
(lol).
but truly good luck in your new venture. I’ve done
6 of them….5 worked great.
If you need any advice you know where to reach me…
law4life1000@yahoo.com.
It’s tough owning your own biz these days…but
you will do well.
la’haim….mazel tov.
your friend
Harley
I was 6 years old when I was fortunate enough to take in a Kansas City Athletics game with my grandfather and Justice Earl Warren. I was too young to contribute, but it did have an effect on me. In those days, there appeared to be fewer Republicans and Democrats, and more independents. It is a well known skill to state a fact, follow it with the word “because”, followed by our opinion. Chuck Schumer proves that it is all projection, as he called for Bush appointees not to be confirmed for 19 months before Bush left office, and he was re-elected. If Republican and Democrat Senators lose their elections, I doubt it will be due to a vote on a potential Supreme Court Justice. Abe Lincoln kept a court appointment open for two years. Obama can nominate and the Senate may or may not confirm.
Obama should just do a recess appointment – screw the ReThugs.
obamacan do a recess appointment and make the rethugs stayin
Washington…..but they’re not going toappoint a liberal to the
s.c…….stop playing games boys….lets get something done!!!!!!!!!!!!!!!!!!
Too late, Harley; Congress has been in recess for 3 days now: any recess appointment made by Obama would serve (at east) until the next (new) Congress convened, regardless whether the current Congress came back early (this week.)
that’s fine….maybe they’ll get something positive done
for once. all this b.s going on now is only putting
important issues on the back burner.
Hearne, I’d love to see a little investigative reporting on Jeff Roe, the Kansas City political consultant who is working for Ted Cruz this cycle. He has a dirty tricks reputation and it appears he is following that model. Maybe Rich Steele would be just the guy to write it.