The Fight Over Scalia’s Seat

Supreme Court Building

Mitch McConnell came out pretty quickly and said that the Senate would not confirm a replacement for Scalia until after the election. The left is, naturally, in full outrage mode. I don’t really care. The Senate has to hold firm, because the very existence of the Second Amendment as any kind of meaningful right is at stake. I really enjoyed this bit of snark from Jim Geraghty this morning:



Senate majority leader Mitch McConnell should just give this speech:

We should not confirm any Obama nominee to the Supreme Court except in extraordinary circumstances. They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not . . .

This is just a prologue considering the constitutional harm and dramatic departures that are in store if those few are joined by one more ideological ally. We have to, in my judgment, stick by the precepts that I’ve elaborated. I will do everything in my power to prevent one more ideological ally from joining Sotomayor and Kagan on the court.

That, of course, is a speech from Chuck Schumer from June 2007, with “Bush” replaced with “Obama” and “Roberts and Alito” changed to “Sotomayor and Kagan.” Watch the video; the audience at the American Constitutional Society gave it roaring applause at the end.

Read the whole thing. The Dems would never be so stupid as to confirm a justice that would fundamentally alter the makeup of the Court in the last year of a Republican Administration. Kennedy was confirmed in Reagan’s last year, but the vacancy occurred in 1986. The Senate rejected Robert Bork, then Douglas Ginsburg withdrew after it came out he once smoked a doob. Kennedy was a compromise candidate the Dems were relatively pleased with.

I tend to agree with Charles Cooke that the GOP should probably have remained open to acceptable candidates. If Obama decided to float Prof. Randy Barnett or Prof. Akhil Amar as compromise candidates, I would argue the Senate should take them pretty seriously. Neither Profs. Barnett or Amar fit nicely on the left-right spectrum, but neither are likely to greatly offend either side.

On the other hand, it would seem likely that President Obama has until February 22nd to make a recess appointment, since the Stupid Party decided to afford him that opportunity. Of course, let’s not give him any ideas either.

8 thoughts on “The Fight Over Scalia’s Seat”

  1. I don’t know how this is all going to play out, but The Party of Stupid has a reputation to uphold. Whatever unfolds will surely be a grandiose drama that will let the GOP prove their soft mettle and complete lack of critical thinking, yet again.

    Mitch McConnell has already botched things up by drawing a dumb line that gives Obama a perfect reason to perform a recess appointment. On a silver-lined platter. Thanks, Mitch!

    Seriously: Mitch McConnell is in charge. Let that sink in a minute. The true depth of how hosed we are will remain unplumbed for years.

    1. To be fair, a recess appointment could/would screw us for a few cases over a term or two. That damage could be severe, to include overturning Heller, but it would be limited in scope and duration.

      A lifetime appointment is a gift that will keep on giving for generations.

  2. More likely than not obama will probably nominate someone who is Center-Left then Left-Left. It’s in his interest to nominate a moderate, especially with the republicans guaranteed to put up a fight. By putting up a moderate he can try to paint senate republicans as “radically right” for opposing a centrist candidate. I would be surprised if we see someone like sotomayor be cnominated. My guess is it will probably be this Sri Srinivasan- he worked under both democrat and republican administrations and was recently confirmed to the D.C. Circuit 97-0.

  3. I thought John Oliver addressed this in an interesting way on Last Week Tonight.

    Watch McConnell’s most interesting comments at about 3:10 in the video — speaking of The Stupid Party.

  4. I love to see the left so outraged that the Senate won’t even consider a nominee. Hey, they made the SC political, and they lost the Senate, so that’s their problem.

    Also, Obama can’t make a recess appointment, the current Senate recess includes two Sundays, which do not count for the recess length. So its only an 8 day recess, and the SC has said that that doesn’t count for the recess appointment clause.

  5. I’m about to write my Senator Sessions on the judiciary. Whoever he nominates shouldn’t even make it out of committee. Our president said it himself, elections have consequences.

  6. “On the other hand, it would seem likely that President Obama has until February 22nd to make a recess appointment, since the Stupid Party decided to afford him that opportunity. ”

    Or maybe not. One of Scalia’s last cases was the 9-0 spanking Obama got over recess appointments. One of the parts of that ruling is that he can’t make a recess appointment unless the recess is over 10 Senate business days long.

    Senate business days do not and never have included Sundays. (more of that non-existent religious foundation) Without Sundays, this recess is only 8 days.

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