What Is The Future Of The Supreme Court?
Posted by Michelle Moquin on May 1st, 2014
Good morning!
Another write brought to you by Think Progress. And another reason why we need to hold onto the Senate this November.
There’s A Hidden Timebomb In The Senate Rules That Will Go Off If A Supreme Court Justice Retires
As Jonathan Chait notes, only five Republican senators voted to confirm Justice Elena Kagan to the Supreme Court, and three of those senators — Judd Gregg, Richard Lugar and Olympia Snowe — are no longer in the Senate. If Republicans take the Senate this November, there is a very real possibility that no one President Obama nominates to a Supreme Court vacancy, no matter what their record or qualifications, could be confirmed to the Court.
We made a similar point in 2012, when Tea Party candidate Richard Mourdock defeated Lugar in a Republican Senate primary after he attacked Lugar for his support of Kagan and Justice Sonia Sotomayor. As we wrote then, “[i]n light of this incident, it is unlikely that any of the few remaining Republicans who backed an Obama Supreme Court appointee will be willing to risk their careers by doing the same again.”
Indeed, under the Senate’s current rules, Republicans could block a Supreme Court appointment right now, if they chose to, even though Democrats effectively control 55 percent of the Senate. Last November, when Senate Democrats voted to invoke the so-called “nuclear option” and end the GOP’s ability to require a supermajority to vote to confirm most nominees, they left in place the 60 supermajority requirement for Supreme Court confirmations. As a result, unless at least five Republicans oppose a GOP filibuster of a Supreme Court nominee, the current rules allow the GOP to keep that nominee from being confirmed.
Of course, if the vacancy were to arise right now, when Democrats control a solid majority of the Senate’s seats, it would be a simple matter to invoke the “nuclear option” again — a procedure that allows the Senate’s rules to be changed by a simple majority vote. But that assumes that a majority of the Senate is willing to support such a rules change.
Although Republicans have not, to say the least, been particularly cooperative when it comes to confirming President Obama’s judges, the truth is that there are some GOP senators who have been less obstructionist than others. Earlier this month, for example, Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) voted with Democrats on Michelle Friedland’s nomination to the United States Court of Appeals for the Ninth Circuit. Friedland, by virtue of the fact that she once clerked on the Supreme Court and that she is a relatively young 41 years-old, is a plausible Supreme Court nominee in a Democratic administration.
The nightmare scenario for Democrats under the current Senate rules arises if Republicans take over the Senate but Collins and Murkowski break with their party to support President Obama’s future Supreme Court nominee. This November, Democrats must defend their gains from the 2008 wave election year where they won seats in states like Alaska and Arkansas where Democrats typically do not fare particularly well. It is easy to imagine Republicans emerging with a slight majority — maybe 51 seats — once all the votes are counted.
Under that scenario, an Obama nominee is still likely to be supported by all 49 of the remaining members of the Democratic caucus, and that nominee could be supported by a handful of Republicans as well. Nevertheless, it is unlikely that any Republican would vote at that particular moment to change the Senate’s rules in order to allow a Supreme Court nominee to clear the Senate by a simple majority vote. To do so would likely be political suicide.
The Senate Democrats’ decision to cut Supreme Court nominees out of the nuclear option last November, in other words, could prove deadly for any nomination President Obama sends to the Senate. If Republicans take the Senate this November, we may need to get used to seeing an empty seat on the Supreme Court for a very long time.
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Readers: Yes, you may get sick of me…you may get tired of me getting on everyone from here until election day. Tough shit. I am going to keep reminding all of you of all the stuff that will go down should the repubs get control. And let me remind you too that we can do this. And if we don’t, we have no one to blame but ourselves.
But hey, the solution is EASY. Get to the polls and vote the Dem ticket all the way across the board. If we all do that, no problem.
Ilene: You and me both. Let’s HOPE more do than don’t.
Peace out.
Lastly, greed over a great story is surfacing from my “loyal”(?) readers. With all this back and forth about who owns what, that appears on my blog, let me reiterate that all material posted on my blog becomes the sole property of my blog. If you want to reserve any proprietary rights don’t post it to my blog. I will prominently display this caveat on my blog from now on to remind those who may have forgotten this notice.
Gratefully your blog host,
michelle
Aka BABE: We all know what this means by now :)
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May 1st, 2014 at 5:34 pm
Sorry to disappoint the conspiracy theorists but, I am not ZL. Yes, she’s pretty, but she’s got nothing on me (save for a few inches in stature).
PrP
May 1st, 2014 at 5:47 pm
Zen Lill #5 Yesterday:
As your Blog Brother for a nice few years, I know that you are you and I like you just the way you are.
LUV,
HOWIE
May 1st, 2014 at 7:28 pm
PrP, I got nothing on anybody, lol, most of the women that come on here claim they’re beauties and I’m sure they are, and there’s obviously plenty of HB and AB beouf cake to go around for all of us (and it sounds like lots are up for sharing : ) so a few inches in stature is only important if the beuof cake of choice is a legman. As for Howie’s comment to you, he’s got a point, enigmatic and then you were asked not to mention the party/ies involved by the blog host, so why bother commenting if it needs to stay between you and the commander? Just curious, it’s not anything but a Q, please do not be offended.
Howie, thank you and right back at you!
As far as Roman goes, I do know a few peeps that did do that kind of guerilla marketing back in the day and they love to talk about it as if it’s an MO that could work for everyone and for every business and no, it doesn’t for most, and yes it just wreaks of the ‘your lazy if you won’t do that’ kind of Repug rhetoric, apologies all around for even mentioning him.
Luv, ZL
May 1st, 2014 at 10:04 pm
Zen Lill you catch on fast. Those repugs are not as slick as they think.
May 1st, 2014 at 10:10 pm
Reid should have gone nuclear in May 2009
when it was already crystal clear what was going to happen. We would have Medicare for all and the Repukes would be circling the bowl.
May 1st, 2014 at 10:11 pm
Harry Reid failed to prevent the disaster that is now our Supreme Court.
He had to know. He simply had to know.
May 1st, 2014 at 10:13 pm
What if…
one of the conservatives can no longer serve, for whatever reason. Even with a vacancy, not filled, a 4-4 tie would make the lower court’s ruling stand, and that would depend on which District issued the prior ruling.
May 1st, 2014 at 10:14 pm
I’m glad I’m old. I won’t be around to see what has become of this country.
Problem is.. I’m not that old. As the country turns to shit, I’ll be less able to adapt and roll with the punches.
How can anybody with any knowledge of history not see the direction we’re headed?
May 1st, 2014 at 10:15 pm
See the beginning of Michael Moore’s “Capitalism: A Love Story.”
The part where he talks about the Roman Empire. Since we are making similar mistakes, we’re headed. for a similar fate. This country is in the early stages of decline, and the pace is accelerating. I no longer think of it as “my country,” because it belongs to the 1% now. Somewhere along the line it was stolen.
May 1st, 2014 at 10:15 pm
But some here have to teach the Democrats a lesson
That they can’t take the base (as they like to think of themselves) for granted.
May 1st, 2014 at 10:16 pm
I was hoping it was time for Scalia and Thomas to retire
and spend more time with their families. They should do it sooner. Life is short.
Either way, even those who want to punish Democrats should try to elect more liberal Dems. Get out the VOTE!!!