The Constitutional Standoff Over the Supreme Court Seat

Senate Majority Leader Mitch McConnell had no truck with the niceties of eulogies and condolences. Barely an hour after death of Justice Antonin Scalia was confirmed he issued a categorical rejection of anyone President Obama might
nominate as his
replacement, proclaiming, "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president”.

A week later, Senate Republican leaders slammed the door tighter saying there will be no confirmation hearings and that McConnell will not even meet with President Obama’s nominee, an ugly discourtesy that knows no precedent.

The current president had reminded him that, "The Constitution is pretty clear about what is supposed to happen now" — the prescription of Article II, Section 2 that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court". Not "may" do so but "shall". And it is implicit that the Constitution does not have in mind "someday".

Charges and demands flew back and forth. President Obama was reminded in turn that he had voted to filibuster President George W. Bush's pick of Samuel Alito for the Court. The opposition fired back with a 2007 radio interview in which McConnell had prodded Democrats to confirm Bush's federal judge choices in his last year in office. Senator Charles Schumer, who has demanded that the Senate perform its advice and consent role, was caught out saying in a 2007 speech that, should there be another Supreme Court opening for Bush to fill, "I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances”. Marco Rubio threw down the gauntlet, challenging Obama to “nominate whoever he wants”, but “we’re not moving forward on it, period.” Apoplectic at the prospect of Obama's getting to fill the empty seat, Ted Cruz warned that “we are one justice away from the Second Amendment being written out of the Constitution altogether" and with another Democratic president there would be “unlimited abortion on demand”. Hillary Clinton and Bernie Sanders both lambasted Cruz and the other Republicans for championing strict adherence to the Constitution — except when its commandments prove inconvenient. An exasperated Cruz blurted out, "This is a 5-4 court!". Apparently it is always to have a conservative majority in his version of the Constitution.

Obama has let it be known that he has every intention of nominating. The question is whether he will put forth another liberal candidate for the court as he did with Sonia Sotomayor and Elena Kagan in the assumption that the Senate's refusing their preferred sort of candidate will anger the Democratic base and send record numbers to the polls in November.

Or will he this time propose a moderate to make it as difficult as possible for McConnell and the Senate Republicans to ignore the Constitution's directive to render "advice and consent" for a president's nominee. The moderate option should be doubly UPDATE: Feb.26: Instead of what we expect here to be Obama's strategic options, just after we posted this story, the President was reported to be seriously considering a Republican, Governor Brian Sandoval of Nevada, a move which would have accomplished nothing other than to anger and bewilder both Democratic centrists and liberals. Sandoval quickly asked that his name be withdrawn. Several others are said to be undergoing vetting now.
    
awkward if the choice is someone who has already been vetted by the Senate. The media immediately came up with Judge Sri Srinivasan, an Indian-American named by Obama in 2013 to the D.C. Court of Appeals and confirmed by the Senate 97 to 0, and Judge Jane Kelly, an Obama Harvard Law School classmate whom he also named to the Court of Appeals in 2013 and whom the Senate also confirmed unanimously, 96 to 0.

How will the Senators argue that they were mistaken and on reconsideration decide that neither is qualified? The answer is that they will make no argument and instead leave the court in limbo.

As summer approaches, McConnell's absolutist stance could prove problematic for senators up for re-election this fall. If Obama sends nomination of a moderate to the Senate only to be ignored while the court hands down one after another deadlocked 4-to-4 decisions in the important cases it is now reviewing, there will be pressure on McConnell to relent, with Democrats chanting "obstructionists" in full voice. But with his second announcement McConnell has painted himself into a corner.

In the event of 4-to-4 decision, the ruling of the lower court whose decision has been appealed to the Supreme Court, stands. That will mean that a 2013 Texas law will survive that requires abortion clinics to have outpatient surgical facilities and its doctors to have admitting privileges at a nearby hospital, a law that adds so much cost that it is clearly intended to drive the clinics out of business.

But liberals will fare better in other cases. The justices again have before them the affirmative action case, Fisher v. University of Texas, (which we covered in " Supreme Court Might Erase Race from Affirmative Action")in which a student claimed she had been denied admission by a policy that favored less-qualified Africa-American candidates. Because she worked on the case as solicitor general when it was first heard (it had been remanded to the appellate court for further consideration but back it came), Justice Kagan recused herself, which leaves seven justices and removes the possibility of deadlock. There is a question whether the court will decide so momentous a case this shorthanded.

In Evenwel v. Abbott, yet another Texas case, the court had showed a strong leaning toward the plaintiff's argument that only persons eligible to vote should be considered in divvying up election districts (which we've also explored in "Is the Supreme Court Plotting to Scramble Elections?"). But Scalia's absence leads to a probable 4-to-4 and no change in the never before challenged practice of counting everyone.

Similarly, Friedrichs v. California Teachers Association will probably come in at 4-to-4 which leaves unchanged a case that portended a death knell for unions had it been reversed. Instead the lower court's ruling that teachers cannot opt out of union dues will stand.

Then there is contraception. In Zubik v. Burwell the court will hear seven petitions arguing that employers should not be required against their religious principles to pay for contraception for their employees as required by the Affordable Care Act. This is a follow on from the court's decision in favor of the Hobby Lobby corporation that Justice Kagan foretold would bring religious objectors “out of the woodwork”. A 4-to-4 dead heat will leave the lower courts split, some in favor of the plaintiffs, some against, which probably means the case will need to be re-argued when, if ever, a ninth justice is confirmed.

The most interesting conjecture came in a letter to the New York Times from Brad Thompson of McMinnville, Oregon.

Associate Justice Anthony M. Kennedy gains if he works with the liberal faction of the court. He was never reliably conservative anyway. And his legacy is not helped by being on the conservative side of virtually meaningless 4-to-4 votes. But as the senior justice on the liberal side of a 5-to-3 vote, he would assign opinions and keep the best cases for himself. He does not get to do that by joining with Chief Justice John G. Roberts Jr. (who would otherwise assign opinions) and the other conservatives. Watch Justice Kennedy over the next year polish his legacy.

the nuclear option

If McConnell manages to lock out any nominee for the next ten months, there is speculation that Obama might take advantage of the Senate's year-end recess to appoint a new justice, as allowed by the Constitution. To prevent Obama from making recess appointments while the Senate took its long breaks throughout the year, the Senate used to keep a single member on duty to conduct daily sham sessions so that it could not be considered in recess, until the Supreme Court ruled that all those vacations were not the "Recess" that the Constitution had in mind. Only the bi-annual changeover after elections can now be called official recesses. But McConnell will probably see to plugging that opening with the same sham session technique. And even if not, an appointment during a recess is temporary.

Which leaves a nuclear option that it seems has not occurred to anyone. Say that a Republican wins the presidency. But if Democrats can trade off Republican obstinacy in not considering a new justice and in blocking the closing of Guantánamo to win back the Senate with the barest majority, they could, immediately on taking their seats, change Senate rules — allowed only at the start of a new session. The Democrats already got a rule changed in 2013 that blocked filibustering against judgeships and other appointments so that a simple majority could carry. But the appointment of a Supreme Court justice was especially excepted and is subject to filibuster.

Given that scenario, Democrats could change that rule with it newly controlling majority the moment the Senate convenes in January, making a simple 51-to-49 vote sufficient to confirm a Supreme Court justice, and then hastily begin confirmation hearings and rush through a vote for a ninth justice days before the next president takes office January 20th.