SCOTUS Watch

[Isgrimnur]

That one is before the 4th Circuit Court of Appeals at the moment. Likely won't make it to SCOTUS until next year.

Members of a three-judge federal appeals court panel are expressing skepticism that North Carolina's Republican-led legislature's changes to voting laws do not discriminate against minorities.

The 4th U.S. Circuit Court of Appeals held a hearing Tuesday about an April trial court ruling that upheld a 2013 voter ID law and exceptions approved later.
...
One judge says the timing of the Republicans' actions "looks pretty bad." Another asked pointed questions about why the GOP excluded public assistance IDs from the list of acceptable forms of identification.

[El Guapo]

Probably doesn't matter (in terms of the election) if it makes it to SCOTUS. What matters most is whether the 4th Circuit will enjoin the law before the election. Which it sounds like it probably will (and the 5th circuit decision raises the odds of that).

[Isgrimnur]

Texas minority opinion

Judge Edith Jones, an especially caustic conservative who Sen. Ted Cruz (R-TX) once said should be on the Supreme Court, wrote the primary dissent. Her opinion is a revealing window into the American right’s dismissive view of allegations of racial injustice. According to Judge Jones, the gravest injustice in this case isn’t that Texas enacted a law that appears to serve no purpose other than voter suppression, it is that the lawmakers who enacted this voter suppression law might get tarred as racists.
...
She opens her dissenting opinion, however, with outrage at the very notion that someone could think that Texas lawmakers might have intended to discriminate on the basis of race. Though the majority did not conclude outright that the lawmakers who backed this law had discriminatory intent — a question that matters because Texas could be placed under federal supervision if it did enact a law with such intent — it did order a trial court to reexamine whether the state acted with impermissible racial animus. In response, Jones is livid.

“By keeping [the discriminatory intent] claim alive,” Judge Jones writes, “the majority fans the flames of perniciously irresponsible racial name-calling.” She compares the majority to “Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the ‘truth.’” And she ends with a plea to save the reputations of elected officials who, at best, sought to water down the fundamental right to vote.

“Inflammatory and unsupportable charges of racist motivation poison the political atmosphere and tarnish the images of every legislator, and the Texas Lt. Governor and Governor,” says Judge Jones.

Such charges may be inflammatory, but in this case they are not “unsupportable.” As the majority opinion explains, the drafters of Texas’s voter ID laws and its supporters “were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact.” One state senator testified that he believes that “the Voting Rights Act has outlived its useful life.” And the record in this case “shows that Texas has a history of justifying voter suppression efforts such as the poll tax and literacy tests with the race-neutral reason of promoting ballot integrity.”

[Isgrimnur]

Texas Voter ID agreement

Texas' voter ID law, considered the strictest in the nation, will be significantly diluted for November's election, and the state will at least $2.5 million on an education campaign, under agreed terms submitted to a federal judge Wednesday.

The deal between Texas and minority groups suing over the photo ID measure allows for voters lacking required identification to cast ballots by signing an affidavit, a process similar to safety nets in place in other states with voter ID laws.

It also stipulates that Texas will "develop a detailed voter education plan" voter ID requirements for the upcoming election and will have to continue those efforts beyond November. The state agreed to spend at least $2.5 million on its new effort, according to the filing, which is more than the roughly $2.4 million the state spent combined during the 2013 and 2014 election cycles on education outreach.
...
U.S. District Judge Nelva Gonzales Ramos still has to give final approval. A hearing has been set for next week.

Under the deal filed Wednesday, voters in November's election would be able to fill out paperwork to swear that they could not obtain an appropriate form of ID to vote and would indicate the reason.

Along with the affidavit, voters would present an alternate form of ID: voter registration card, birth certificate, a current utility bill, bank statement, government check, paycheck or some "any other government document that shows the name of the voter and an address." The affidavit will be translated into Spanish, Chinese and Vietnamese, according to the filing.

The proposed deal also builds in safeguards to prevent poll workers and election officials from dissuading someone lacking the proper identification from casting a ballot.

It stipulates that the "reasonableness" of a voter's grounds for not being able to obtain necessary identification "shall not be questioned by election officials. And election officials also are not allowed to question or challenger voters about lacking an ID, while poll watchers are forbidden from communicating with any voter about presenting identification or the validity of why they lack the necessary identification

[Isgrimnur]

Wisconsin Voter ID

The 7th Circuit Court of Appeals issued an order Wednesday staying an injunction a district court judge issued last month allowing voters without legally-approved photo identification to vote by signing an affidavit saying they faced a "reasonable impediment" to getting such an ID.

The three-judge appeals court panel said that approach was too lax, even if some accommodation was necessary for voters who could not get identification with reasonable effort.
...
The 7th Circuit panel—all Republican appointees—said the district court judge didn't show proper deference to the Wisconsin law when he agreed to let voters get around the ID requirement by just checking a box saying they were too busy with "work" or "family responsibilities" to get one.

"The injunction adds that state officials are forbidden to dispute or question any reason the registered voter gives. Yet the Supreme Court held in [a 2008 case] that 'the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.' A given voter’s disagreement with this approach does not show that requiring one trip to a governmental office is unreasonable."
...
The 7th Circuit panel issued its order blocking the "reasonable impediment" affidavit approach on the same day a federal judge in Texas formally accepted an agreement between state officials and civil rights groups to allow such affidavits for this fall's election, even as legal battles over that state's voter ID law continue.

[Max Peck]

Meanwhile, while everyone has been watching SCOTUS...

Obama's judges leave liberal imprint on U.S. law

When President Barack Obama entered the White House in 2009, the federal appeals court based in Virginia was known as one of the most conservative benches in the country. Two Obama terms later, Democratic appointees hold a 10-5 majority on the 4th U.S. Circuit Court of Appeals, a panel of which issued a groundbreaking ruling this April backing transgender rights. The shift to the left on the court, which hears cases from Virginia, Maryland, West Virginia, South Carolina and North Carolina, highlights a widely overlooked aspect of Obama's legacy. His appointments of dozens of judges to the country's influential federal appeals courts have tilted the judiciary in a liberal direction that will influence rulings for years to come and be further entrenched if Democrat Hillary Clinton wins this November's presidential election.

[Pyperkub]

Meanwhile, while everyone has been watching SCOTUS...

Obama's judges leave liberal imprint on U.S. law

When President Barack Obama entered the White House in 2009, the federal appeals court based in Virginia was known as one of the most conservative benches in the country. Two Obama terms later, Democratic appointees hold a 10-5 majority on the 4th U.S. Circuit Court of Appeals, a panel of which issued a groundbreaking ruling this April backing transgender rights. The shift to the left on the court, which hears cases from Virginia, Maryland, West Virginia, South Carolina and North Carolina, highlights a widely overlooked aspect of Obama's legacy. His appointments of dozens of judges to the country's influential federal appeals courts have tilted the judiciary in a liberal direction that will influence rulings for years to come and be further entrenched if Democrat Hillary Clinton wins this November's presidential election.

Or it's just a natural shift back after 2 terms of extremely conservative appointments. Searching for equilibrium. A better comparison point would be at the end of Clinton's 2nd term. Are the judges more or less liberal than then after 2 terms of GOP and 2 of Dem Presidents?

[Max Peck]

Or it's just a natural shift back after 2 terms of extremely conservative appointments. Searching for equilibrium. A better comparison point would be at the end of Clinton's 2nd term. Are the judges more or less liberal than then after 2 terms of GOP and 2 of Dem Presidents?

The article does touch on that.

In addition to appointing two Supreme Court justices and dozens of district court judges, Obama appointments now make up 55 of the current 168 appeals court judges, according to the judiciary. Obama’s current total of 323 district and appeals court appointments, most of them district court judges, is similar to the tallies achieved by other recent two-term presidents.

There is also the issue of whether the judges appointed under different administrations tend to be reliably liberal/conservative, which is something they didn't go into to any significant degree (aside from an allegation by a liberal law-talker that GOP appointees "are generally less likely to rule in favor of broad interpretations of civil rights.").

[Isgrimnur]

NC Voter ID

The Supreme Court will not allow North Carolina in the coming election to use a strict voting law that a lower court found was enacted “with almost surgical precision” to blunt the influence of African American voters.

The court said Wednesday it would not stay a ruling of the U.S. Court of Appeals for the 4th Circuit that found the law unconstitutional. The court was not ruling on the merits of the law but instead on an emergency request filed by Gov. Pat McCrory (R) to use the law as the state had in previous elections.

Four justices — Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. — would have granted most of North Carolina’s request, according to the court’s order.

However, the court’s conservative members were unable to draw a fifth vote from the court’s liberals. The evenly divided ruling was the latest split decision for a court that has been without a ninth member since Justice Antonin Scalia’s death in February.

[tjg_marantz]

Fucking democrats. Should have put up a nominee and let the republicans be the big assholes.

[Blackhawk]

That's OK. They already did look like assholes, and are going to end up losing the bargaining position they would have had if they hadn't jackassed.

[El Guapo]

Fucking democrats. Should have put up a nominee and let the republicans be the big assholes.

Huh? You mean a SCOTUS nominee? They, uh, did do that.

[Isgrimnur]

Michigan

The Supreme Court on Friday refused to allow Michigan to ban voters from casting straight-ticket ballots in the coming election after lower courts found the prohibition was likely to discriminate against African Americans and result in long lines at the polls.

The justices declined to get involved in a political controversy that began when the state’s Republican leadership passed a bill to end 125 years of straight-ticket voting, which allows a voter to vote for all candidates of a desired party by taking a single action.

The Supreme Court gave no reason for its decision for turning down Michigan’s request that it be allowed to enforce the ban. But it was another sign that it will be difficult for those bringing election controversies to the court in advance of November to prevail.

Justices Clarence Thomas and Samuel A. Alito Jr. said they would have granted the state’s request.
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Michigan has offered straight-ticket voting since 1891. The state’s voters have twice rejected attempts to abolish it.

But the legislature in 2015 did just that, joining 40 other states that do not allow it. The state said eliminating the option increased the chance that a voter would not overlook nonpartisan issues on the ballot and also make a “more informed vote by examining the credentials and values of each candidate.”
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The courts agreed the law would not likely survive constitutional challenge and might violate the Voting Rights Act and could not be used in the coming election.

The challengers presented “unrebutted evidence in the record demonstrating that [the law] will increase the time that it takes to vote, particularly in African-American communities where straight-party voting is prominent and where lines are often already long,” wrote Circuit Judge Karen Nelson Moore. “The district court also found that the law was likely to increase voter confusion and miscast ballots. Although this burden is not severe, it is also not slight. In the face of this burden, the state has offered only vague and largely unsupported justifications of fostering voter knowledge and engagement.”

The Michigan news organization MLive.com found in a survey that about half of Michigan voters in 2012 used the straight-ticket option. About 30 percent of voters chose the Democratic Party, while a little under 20 percent chose Republicans, according to the survey.
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The challengers said the suit was not claiming a constitutional right to straight-ticket voting. “It is about the unconstitutional consequences for millions of voters of eliminating this option in the unique context of Michigan elections,” they told the court.

[Isgrimnur]

Ashcroft

The Supreme Court on Tuesday said it would consider a long-running lawsuit against former attorney general John D. Ashcroft and other top officials filed by immigrants who say they were racially profiled and illegally detained after the Sept. 11, 2001, attacks.

The court will be even more shorthanded than usual: Justices Sonia Sotomayor and Elena Kagan recused themselves from the case, meaning it could be heard by a minimum quorum of six justices. The nine-member court has a vacancy because of the death of Justice Antonin Scalia in February.

The case was filed by six men on behalf of hundreds of mainly Muslim noncitizens who were detained on civil immigration charges for as long as eight months. They never were charged with terrorism but were held in harsh conditions at the Metropolitan Detention Center in Brooklyn.

Besides Ashcroft, they attempt to sue former FBI director Robert Mueller and former Immigration and Naturalization Service commissioner James W. Ziglar.

Ashcroft “ordered that respondents were to be held in these conditions (and their deportations delayed) until they were cleared of any connection to terrorism,” the men said in a brief filed with the Supreme Court. “Mueller oversaw the clearance operation, and would not authorize release of Respondents even after the New York field office cleared them, awaiting a CIA name check. Respondents and others languished for months in solitary confinement even after they had been cleared.”

The suit has been mired in legal maneuvering in the lower courts. A panel of the U.S. Court of Appeals for the 2nd Circuit said it could proceed, and the government asked the full circuit to reconsider. The judges split 6 to 6.
...
In its petition to the court, the Justice Department said that unless the justices stopped the suit, “the nation’s highest ranking law-enforcement officers” could be subjected to “compensatory and even punitive damages in their individual capacities because they could conceivably have learned about and condoned the allegedly improper ways in which their undisputedly constitutional policies were being implemented.”

[Dogstar]

So remember how McConnell said that the next President should get to choose the Justice to replace Scalia?

Turns out McCain isn't onboard with that idea if the next President is named Clinton.

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.”

I'm wondering if this is just off-the-cuff, or whether the comment is based on internal polling that suggests the Republicans won't pay a price for indefinitely sidelining Supreme Court nominations.

[El Guapo]

I've been saying for awhile that I don't think that the Republicans, if they retain the Senate majority, would confirm any Clinton nominee. I'm not sure whether they would maintain a total blockade and continue not holding hearings, or whether they would hold hearings and just find the best available reason for rejecting each and every nominee. But it's unclear why, since the relevant political norms have all but disappeared, they would ever agree to confirm a Clinton nominee (unless she went crazy and agreed to nominate George W. Bush or something).

The only thing I'm unsure of is whether Clinton and the democrats could manage to impose enough political damage on the Republicans that they would have to relent. I kind of doubt it. The only plausible way I think they could is that since they would probably have a near majority (probably something like 49 seats), whether it would be possible to target a Republican senator coming up for reelection in a blue state and try to force them to relent.

[Scraper]

So remember how McConnell said that the next President should get to choose the Justice to replace Scalia?

Turns out McCain isn't onboard with that idea if the next President is named Clinton.

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.”

I'm wondering if this is just off-the-cuff, or whether the comment is based on internal polling that suggests the Republicans won't pay a price for indefinitely sidelining Supreme Court nominations.

McCain himself is up for re-election. It's his way of saying "hey vote me because Hillary GD Clinton", I can still put a stop to her Supreme Court nominee. 2ND AMENDMENT!!!!

[malchior]

I've been saying for awhile that I don't think that the Republicans, if they retain the Senate majority, would confirm any Clinton nominee. I'm not sure whether they would maintain a total blockade and continue not holding hearings, or whether they would hold hearings and just find the best available reason for rejecting each and every nominee. But it's unclear why, since the relevant political norms have all but disappeared, they would ever agree to confirm a Clinton nominee (unless she went crazy and agreed to nominate George W. Bush or something).

I'm sorta with you - I'm pretty pessimistic about American politics but I still believe they'll return to some sort of order. Meaning they'll at least hold hearings but they'll be nasty. Ridiculously nasty. I think there is still a mountain of difference between the absurd notion you can't nominate a Supreme 20-30% of the time and the get ready for civil war 2 level that never confirming unless we are in power would imply. We'd know where we stand I guess but that'd honestly be end times of American democracy as it presently stands.

[El Guapo]

I've been saying for awhile that I don't think that the Republicans, if they retain the Senate majority, would confirm any Clinton nominee. I'm not sure whether they would maintain a total blockade and continue not holding hearings, or whether they would hold hearings and just find the best available reason for rejecting each and every nominee. But it's unclear why, since the relevant political norms have all but disappeared, they would ever agree to confirm a Clinton nominee (unless she went crazy and agreed to nominate George W. Bush or something).

I'm sorta with you - I'm pretty pessimistic about American politics but I still believe they'll return to some sort of order. Meaning they'll at least hold hearings but they'll be nasty. Ridiculously nasty. I think there is still a mountain of difference between the absurd notion you can't nominate a Supreme 20-30% of the time and the get ready for civil war 2 level that never confirming unless we are in power would imply. We'd know where we stand I guess but that'd honestly be end times of American democracy as it presently stands.

The thing is that the SCOTUS nominee blockade of 2016 hasn't seemed to hurt Trump or the Republicans at all. In fact, it seems (based on qualitative sources, admittedly) that it has *helped* Republicans, as conservatives who are squeamish on Trump can hold their nose and vote for him based on having a Republican fill the SCOTUS vacancy. Having a SCOTUS vacancy as a live issue in 2018 and/or 2020 would presumably help them in the same way.

[stessier]

Couldn't she trump them by nominating a very moderate liberal? Or pull a West Wing and have another justice retire and then nominate two at once - one for them, one for her. She doesn't have to make it easy for them by nominating Jane Roe (yes, yes, I know her stance has changed).

[El Guapo]

Couldn't she trump them by nominating a very moderate liberal? Or pull a West Wing and have another justice retire and then nominate two at once - one for them, one for her. She doesn't have to make it easy for them by nominating Jane Roe (yes, yes, I know her stance has changed).

Republicans made up one nonsense excuse to justify the current blockade. There's nothing clearly stopping them from making up a new nonsense excuse to justify an extension of the blockade. And Garland's already a moderate liberal who is not very young. The point is that the GOP has no clear reason to allow the confirmation of any non-GOP SCOTUS nominee.

My guess is that they would begrudgingly accept in theory that Clinton could nominate a replacement to be considered, but essentially take the position that they would only confirm a replacement judge who had a Scalia-like philosophy.

[Smoove_B]

The thing is that the SCOTUS nominee blockade of 2016 hasn't seemed to hurt Trump or the Republicans at all. In fact, it seems (based on qualitative sources, admittedly) that it has *helped* Republicans, as conservatives who are squeamish on Trump can hold their nose and vote for him based on having a Republican fill the SCOTUS vacancy. Having a SCOTUS vacancy as a live issue in 2018 and/or 2020 would presumably help them in the same way.

I was speaking to RM9 about this offline and my general feeling is this -- the GOP hates Trump and they didn't want him to be the nominee in any capacity. Instead, they figured they'd rally the (R) voters by going back to the old chestnuts of abortion and gun rights by way of the Supreme Court and get the message out that by not voting for an (R) candidate, you risk having the Supreme Court aborting guns or whatever. This is a strategy they could have followed for any of the presumptive (R) nominees that were still likely going to come up short against Hillary. Well, as it turns out, there quite a few voters (let's continue to call them Deplorables) that really like Trump because of either his demeanor or his hard-line stance against immigrants. I'm pretty confident the GOP was as surprised as the rest of of us as his momentum so they decided to begrudgingly support him by trying to fold their Supreme Court voters into his Deplorables and possibly combine them both into a giant shit-sandwich that could beat the (D) candidate.

[Grifman]

My guess is that they would begrudgingly accept in theory that Clinton could nominate a replacement to be considered, but essentially take the position that they would only confirm a replacement judge who had a Scalia-like philosophy.

I highly doubt that. No Senate ever refused to have hearings on a presidential nominee for their entire term. They just couldn't get away with it politically, and they are not going to get a Scalia from Clinton. Elections have consequences and I think the Republicans realize this. To withhold hearings and vote for a entire presidential term unless she submits someone they want would be unprecedented. It will never happen.

[El Guapo]

My guess is that they would begrudgingly accept in theory that Clinton could nominate a replacement to be considered, but essentially take the position that they would only confirm a replacement judge who had a Scalia-like philosophy.

I highly doubt that. No Senate ever refused to have hearings on a presidential nominee for their entire term. They just couldn't get away with it politically, and they are not going to get a Scalia from Clinton. Elections have consequences and I think the Republicans realize this. To withhold hearings and vote for a entire presidential term unless she submits someone they want would be unprecedented. It will never happen.

It's also unprecedented to refuse to hold hearings on a SCOTUS nominee for the final year of a president's term. And they would know that they're not going to get a Scalia - the point would be to not fill the vacancy until a GOP president can nominate a GOP justice (although if Clinton caved in the stand-off that would be gravy).

Given that the current unprecedented SCOTUS obstructionism has not appeared to hurt the GOP at all, what's the evidence that extending the blockade would hurt the GOP? I mean, that's certainly *possible*, but I don't see any reason to count on it.

[Grifman]

My guess is that they would begrudgingly accept in theory that Clinton could nominate a replacement to be considered, but essentially take the position that they would only confirm a replacement judge who had a Scalia-like philosophy.

I highly doubt that. No Senate ever refused to have hearings on a presidential nominee for their entire term. They just couldn't get away with it politically, and they are not going to get a Scalia from Clinton. Elections have consequences and I think the Republicans realize this. To withhold hearings and vote for a entire presidential term unless she submits someone they want would be unprecedented. It will never happen.

It's also unprecedented to refuse to hold hearings on a SCOTUS nominee for the final year of a president's term. And they would know that they're not going to get a Scalia - the point would be to not fill the vacancy until a GOP president can nominate a GOP justice (although if Clinton caved in the stand-off that would be gravy).

Given that the current unprecedented SCOTUS obstructionism has not appeared to hurt the GOP at all, what's the evidence that extending the blockade would hurt the GOP? I mean, that's certainly *possible*, but I don't see any reason to count on it.

There's a huge difference between not filling a vacancy in the last year of a president's term, especially when you have Democrats on record as saying the same thing when they were in the same situation, and never filling a vacancy or vacancies during a president's entire four year term. That just won't stand, and I do think they would pay a huge political price if they said they would not confirm a single Clinton nominee. They can get away with a year but not four years, they might as well throw out the constitution at that point.

[malchior]

They can get away with a year but not four years, they might as well throw out the constitution at that point.

This is my take as well. It'd be a crossing the rubicon moment. They explicitly said things like - 'the next President' should decide because the voters will have given them a mandate". It's bullshit and nonsensical and dangerous but it is coherent. If that transforms into an unwillingness to confirm anybody - that'll be it. Elections are meaningless. Normal order has been compromised. All bets are off. Despite how wretched and cowardly the Republican leadership has been...this would be a new level. It'd be the end.

[Dogstar]

It looks like McCain might have reversed himself, per this tweet.

"McCain walks back comment he'd oppose any HRC Scotus nom. Per spox will "vote for or against that individual based on their qualifications"

[El Guapo]

My guess is that they would begrudgingly accept in theory that Clinton could nominate a replacement to be considered, but essentially take the position that they would only confirm a replacement judge who had a Scalia-like philosophy.

I highly doubt that. No Senate ever refused to have hearings on a presidential nominee for their entire term. They just couldn't get away with it politically, and they are not going to get a Scalia from Clinton. Elections have consequences and I think the Republicans realize this. To withhold hearings and vote for a entire presidential term unless she submits someone they want would be unprecedented. It will never happen.

It's also unprecedented to refuse to hold hearings on a SCOTUS nominee for the final year of a president's term. And they would know that they're not going to get a Scalia - the point would be to not fill the vacancy until a GOP president can nominate a GOP justice (although if Clinton caved in the stand-off that would be gravy).

Given that the current unprecedented SCOTUS obstructionism has not appeared to hurt the GOP at all, what's the evidence that extending the blockade would hurt the GOP? I mean, that's certainly *possible*, but I don't see any reason to count on it.

There's a huge difference between not filling a vacancy in the last year of a president's term, especially when you have Democrats on record as saying the same thing when they were in the same situation, and never filling a vacancy or vacancies during a president's entire four year term. That just won't stand, and I do think they would pay a huge political price if they said they would not confirm a single Clinton nominee. They can get away with a year but not four years, they might as well throw out the constitution at that point.

Yes, this would be worse. But the current SCOTUS obstructionism is also unprecedented (notwithstanding a few democrats saying some similar things, though most of those don't hold up in context) and the GOP has paid zero price for that. They *might* pay a more significant price for a longer blockade, but what's the evidence for that? After all, in addition to the current SCOTUS blockade not costing Republicans, McConnell's scorched earth opposition to Obama not only didn't hurt but pretty clearly *helped* Republicans. There just isn't much reason to conclude that obstructionism hurts the opposition party.

Besides, as I said I don't think that they will *say* that they won't confirm any Clinton appointee. I think they're more likely to adopt an aggressive position on the types of judges that they will confirm. Basically they'll insist on a conservative judge (of course they would couch it in terms of a "strict constitutionalist" judge or something like that) and say Clinton is looking to nominate some radical far left jurist who will rewrite the constitution. "Oh, if only Clinton would nominate someone reasonable, we would be happy to confirm them. Too bad she's a far left radical who wants to destroy America!"

And bear in mind GOP senators would be facing political pressure not only to confirm a reasonable nominee, but also to be as obstructionist as possible. Not only would McConnell be leaning on them, but conservative groups would be threatening to primary any senator who didn't toe the line.

[Unagi]

So remember how McConnell said that the next President should get to choose the Justice to replace Scalia?

Turns out McCain isn't onboard with that idea if the next President is named Clinton.

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.”

I'm wondering if this is just off-the-cuff, or whether the comment is based on internal polling that suggests the Republicans won't pay a price for indefinitely sidelining Supreme Court nominations.

McCain himself is up for re-election. It's his way of saying "hey vote me because Hillary GD Clinton", I can still put a stop to her Supreme Court nominee. 2ND AMENDMENT!!!!

I think you misfired.
McCain vs. McConnell here

[Unagi]

My guess is that they would begrudgingly accept in theory that Clinton could nominate a replacement to be considered, but essentially take the position that they would only confirm a replacement judge who had a Scalia-like philosophy.

I highly doubt that. No Senate ever refused to have hearings on a presidential nominee for their entire term. They just couldn't get away with it politically, ...

Don't be so sure of yourself.

[Blackhawk]

At some point, once everyone is seated and the Trumpists calm down a little, I hope someone will consider putting something in place to prevent this kind of hijacking of the government. The Republicans managed to turn check-and-balance into a roadblock, and it is abhorrent.

Hell, just give the citizenry to right to file a class-action lawsuit against congress for breach of contract. Deliberately holding the government hostage is not why we hired them.

[GreenGoo]

My guess is that they would begrudgingly accept in theory that Clinton could nominate a replacement to be considered, but essentially take the position that they would only confirm a replacement judge who had a Scalia-like philosophy.

I highly doubt that. No Senate ever refused to have hearings on a presidential nominee for their entire term. They just couldn't get away with it politically, ...

Don't be so sure of yourself.

They can call 1 year procrastinating. Not doing a thing for an entire 1st term of a president is harder to sell and just looks like they refuse to do their jobs.

Now it's possible to sell that level of obstruction to crazy people, and we've learned this election that there are a lot more than we'd like, but I like to think there aren't enough of them to result in "no new SCOTUS judge until we're in power". That would be a level of crazy that shows a dysfunctional government, not an adversarial one.

[Skinypupy]

My guess is that they would begrudgingly accept in theory that Clinton could nominate a replacement to be considered, but essentially take the position that they would only confirm a replacement judge who had a Scalia-like philosophy.

I highly doubt that. No Senate ever refused to have hearings on a presidential nominee for their entire term. They just couldn't get away with it politically, ...

Don't be so sure of yourself.

They can call 1 year procrastinating. Not doing a thing for an entire 1st term of a president is harder to sell and just looks like they refuse to do their jobs.

Now it's possible to sell that level of obstruction to crazy people, and we've learned this election that there are a lot more than we'd like, but I like to think there aren't enough of them to result in "no new SCOTUS judge until we're in power". That would be a level of crazy that shows a dysfunctional government, not an adversarial one.

I think you underestimate the crazy. Most Trump supporters I know are voting for him because of the Supreme Court only, and I can't imagine they'd have any issue with holding out entirely until they get their way. It's their biggest (and often only) concern.

[GreenGoo]

Maybe.

We'll see whether they still have it in them in year 3.

[Grifman]

My guess is that they would begrudgingly accept in theory that Clinton could nominate a replacement to be considered, but essentially take the position that they would only confirm a replacement judge who had a Scalia-like philosophy.

I highly doubt that. No Senate ever refused to have hearings on a presidential nominee for their entire term. They just couldn't get away with it politically, ...

Don't be so sure of yourself.

Uh, it has nothing to do with me being sure of myself, since I don't make the decision :0

[Grifman]

I think you underestimate the crazy. Most Trump supporters I know are voting for him because of the Supreme Court only, and I can't imagine they'd have any issue with holding out entirely until they get their way. It's their biggest (and often only) concern.

They just won't do it. This is crazy talk, as crazy as anything Trumpers come up with. The Senate just isn't going to sit on SC nominees for 4 years, if only because what it would mean for a Republican president in the future. They just can't refuse to confirm anyone for 4 years. They can delay for a year at the end, but not for 4 years. This is just as much crazy talk as Trumpers talking about rigged elections.

[GreenGoo]

For the record, I don't think the Dems have this level of obstructionism in them, and I don't think their supporters want them to have it.

What that means as far as political strategy, I don't know. A threat of tit for tat isn't going to work, I don't think.

[Unagi]

My guess is that they would begrudgingly accept in theory that Clinton could nominate a replacement to be considered, but essentially take the position that they would only confirm a replacement judge who had a Scalia-like philosophy.

I highly doubt that. No Senate ever refused to have hearings on a presidential nominee for their entire term. They just couldn't get away with it politically, ...

Don't be so sure of yourself.

Uh, it has nothing to do with me being sure of myself, since I don't make the decision :0

"Don't be so sure they couldn't get away with it politically" was my only point.
I agree it would be really REALLY poor governing, and unprecedented. So, I too, like to think it wouldn't happen. I just think they could actually get away with it with their constituents ... but you are right that there are more political angles than just their base.

[El Guapo]

I think you underestimate the crazy. Most Trump supporters I know are voting for him because of the Supreme Court only, and I can't imagine they'd have any issue with holding out entirely until they get their way. It's their biggest (and often only) concern.

They just won't do it. This is crazy talk, as crazy as anything Trumpers come up with. The Senate just isn't going to sit on SC nominees for 4 years, if only because what it would mean for a Republican president in the future. They just can't refuse to confirm anyone for 4 years. They can delay for a year at the end, but not for 4 years. This is just as much crazy talk as Trumpers talking about rigged elections.

I don't find the assertion that they "just can't refuse to confirm anyone for 4 years" very compelling. Why not, exactly? What mechanism is there to force them to do it? Again, they have paid *zero* price (possibly even benefitted) from their SCOTUS obstructionism so far. And yes, again, this is worse, but I'm extrapolating from the data so far which indicates no cost...so it's not obvious to me that the marginal cost for extending it for four years is definitely going to be worse.

Bear in mind that a Clinton nominee means a variety of bad things from the perspective of Republican-aligned voters / constituencies - more liberal decisions on immigration, taxes, business regulation, abortion (which is a little unpopular on the right), and on and on. It's hard to see how any GOP senator is not going to face pressure from the Republican coalition to vote no on Clinton SCOTUS appointees.

[Carpet_pissr]

Is there no law or statute that defines how and how soon a SCJ must be replaced? Surely there is a time limit or time frame specified, if only to avoid situations exactly like this, no?