Here are a few thoughts on the Supreme Court vacancy as my kids are slowly quieting down for the night.
First, a 4-4 court from a liberal perspective is no worse than the current situation. Crappy decisions like the DACA decision out of the 5th Circuit will continue to be affirmed. However the affirmation will be on because the court can not come to a majority decision therefore the appeals court ruling holds only for that circuit and not for the nation. Questions coming out of liberal rulings in the appeals courts where the four liberal votes are voting to uphold and where there is a conservative swing vote (Kennedy or Roberts most likely) do not change in their outcome as the alignment would be a 5-3 or 6-2 ruling with a clear majority. The cases where Scalia would have been a member of a five person majority are the cases that are now being tossed back to the appeals courts as unresolved.
As of this year, most of the Appeals circuits including the DC circuit have a Democratic appointed judge majority. Cases which were granted cert from these circuits and would have been 5-4 reactionary judgments will be kicked back to the circuits. Those circuits will either have ruled with fairly liberal judges on the initial ruling or if the case was important enough and the randomly selected appeals panel was significantly out of line with the circuit consensus, en banc hearings would have final say.
If there is a long stretch of an 8 member court that can’t decide anything controversial, I predict that there will be a significantly higher number of en banc hearings conducting mini-reversals. The probability of a Supreme Court bench-slapping goes down dramatically.
Now onto healthcare. There are only two major healthcare cases on the docket right now. The first case is a technical discussion as to whether or not ERISA pre-emption regulations prohibit states from requiring self-insured companies from providing data to all payer claims databases. I don’t know if this was lining up to be a 5-4 decision nor what the configuration would have been. My preference is that the Supreme Court rules that all payer claims databases can require self-insured companies to submit data without running afoul of ERISA.
The other major healthcare case is the Little Sisters of the Poor et al. This is a birth control cases for religiously affiliated non-profits that think the mere act of signing a piece paper that states birth control is icky and the damn sluts should have the risk of pregnancy every time they spread their legs is an infringement on their rights under the Religious Freedom Restoration Act. This is a continuation of the line of logic that powered Hobby Lobby but it attacks the work-around that a third party administrator pays for birth control instead of the employer sponsor of the plan. This would have been a priori a 5-4 loss for PPACA and the notion that female reproductive autonomy is between a woman and her doctor. Now it is most likely a 4-4 case where the appeals courts have been slapping down the argument that the Little Sisters and others are making: signing a piece of paper is too much effort on their part.
As far as nominations, the only scenario where a nominee to the right of Atilla the Hun goes through is if by mid-May early polling and indicators show that the Democrats will most likely hold onto the White House and pick up at least four if not five or six Senate seats in November. At that point, the calculation could be that from a policy perspective, a Republican majority in the Senate could not get any better than having some say in a nominee instead of seeing a Democratic president nominate a choice constrained by Manchin instead of Grassley and a 51 or 53 vote Democratic Senate effectively say that if the Republicans want to run the Senate like Parliament, then by god they’ll get that.
Betty Cracker
PBO just laid down the gauntlet. Good for you, Mr. President!
Hildebrand
@Betty Cracker: Bingo – and he made sure to remind everyone to do their constitutional duty in a timely fashion. I believe the phrase he used was, ‘plenty of time’ to get this done.
Misterpuff
@Betty Cracker: And the nom better be a Dem and at least liberal.
If Obama does that, Blue America will have his back
SiubhanDuinne, Annoying Scoundrel
POTUS said what he needed to say. Nice, if anodyne, comments on Scalia’s 30 years and the fact that he was a “towering, consequential” person in the legal history of this country. Then, “I’m going to fulfill my Constitutional responsibility and I expect the Senate to fulfill it’s fucking Constitutional responsibility.” Words to that effect. I might be paraphrasing a little.
rk
What happens to that climate change executive order that the 5 morons (now four) halted. I read that that decision could jeopardise the climate change agreement reached by the UN.
gf120581
Personally, from what I’m seeing, Obama has all the cards in this. He needs to do one simple thing; nominate someone who’s qualifications are beyond question and if the GOP stonewalls, ram it down their throats.
As far as I’m concerned, this is a fucking disaster for the GOP all around, especially the Senate GOPers up for reelection this year. I imagine Ayotte, Kirk, Portman, Toomey, etc. are all in panic mode tonight. (Johnson I imagine is too fucking stupid and he’s doomed anyway.)
Ruckus
Richard, why is it that you seem to make good sense all the time? You do know this is a blog don’t you?
SiubhanDuinne
Also, LOVED the way Obama emphasized that Scalia was from an immigrant family. Heh.
DCF
@gf120581:
SRI SRINIVASAN
(202) 216-7080
https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+SS
Sometimes, Scalia Surprised the Living Sh*t Out of Me
Reflections on a once-admirable career.
http://www.esquire.com/news-politics/politics/news/a42134/antonin-scalia-death-charles-pierce/
HinTN
The gift that keeps on giving finally comes about.
redshirt
@Misterpuff: You doubt somehow it won’t be?
I'mNotSureWhoIWantToBeYet
@rk: Someone said earlier tonight, here on another thread, that a SCOTUS decision hasn’t been made until it is officially announced. This makes sense, since after all they might change their minds until it is official. Since nothing has been announced this term, the cases taken up in October are in limbo until they’re announced. If the vote is 4:4, then the lower court ruling stands. The EPA decision (and UN Climate Change agreement) would seem safe for now on that basis.
IANAL.
Cheers,
Scott.
amk
@Misterpuff:
drawing a line in the sand? even after the 2010, 2012 and 2014 shellacking? really?
WaterGirl
@I’mNotSureWhoIWantToBeYet: I surely hope that will be the case!
Matt McIrvin
@amk: Did the Democrats lose in 2012 and I didn’t hear about it?
scottinnj
Please proceed, Senator McConnell
Richard Mayhew
@gf120581: The question is what is the optimal nominee profile to do so. In 2009, the optimal nominee was a solid liberal who was 42 years old had all four grandparents still kicking where the youngest was 99, and was late accepting the phone call from PBO because s/he was on a training run for an Ironman.
We aren’t going to get that.
Now there are several different flavors to go for:
1) The amazingly qualified route: For instance Sri Svanisan (48 IIRC) currently a judge on the DC Court of Appeals, won confirmation to the #2 court in the country 97-0 in 2013 so this is a “Fully Qualified and you all were cool with him last time so what changed” challenge
2) The Base Motivator — Find someone who will get at least three Republican Senators speaking with a bullhorn when they dog whistle their opposition. The person should be fully qualified but the goal is to motivate Democratic voters. The ideal demographic profile is a single lesbian with bi-racial heritage in late 40s to mid-50s.
3) The Epic Troll nominee — Nominate someone who looks to be a massive concession to the GOP but is not — Posner would be a case study here as Posner’s intellectual history is calling Scalia an intellectual and judicial fraud. Furthermore given his age, it would be seen as a “temporary” pick
My bet is the Obama will continue to slow play the situation as the most reasonable man in the room and go route #1, nominate an amazingly well qualified judge who had bee confirmed by the Senate by a ridiculous margin within the past 6 years…
Richard Mayhew
@Ruckus: I know this blog, but I suck at hair on fire writing so I stay within my core competencies and enjoy it when John and others go off in a way that I admire but can not emulate
gwangung
@Richard Mayhew: In a lot of ways, Svanisan combines #1 .
Bill Arnold
@I’mNotSureWhoIWantToBeYet:
I was/am very upset with the former Supreme Court majority’s partisan (that’s the nice word) stay of the “Environmental Protection Agency’s ‘Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units”.
Has anyone found any not-IANAL legal analysis of the implications for Tuesday’s stays?
Roger Moore
@Richard Mayhew:
My plan would be to nominate somebody who fits #2, wait for them to be shot down, then nominate somebody who fits #1. That lets you get some of the boost from motivating the base- and I think that motivation will carry after the Republicans have summarily dismissed her- and use the Republican partisanship on the issue to hammer them if they don’t go along with the second nominee.
Richard Mayhew
@Roger Moore: I would differ, I would go like this #1, #1, #2, #1, #3 and then let Hillary take over from there
Mai.naem.mobile
My guess PBO will have 3-4 qualified people lined up. I’m hoping they’re minorities of whatever stripe to further demonstrate the bigots that the GOP comtain. Then, I hope that he lines them up in increasing liberal ideology.
Applejinx
#1 all the way, like a responsible bipartisan person, and then have both Bernie and Hillary vow to go #2 as hard as possible. Basically ‘take Obama’s justice, or get stomped and then deal with Bernie’s/Hillary’s justice’
NobodySpecial
Obama should go full troll and nominate someone who thinks Santa Clara is a piece of legal fiction.
Richard Mayhew
@NobodySpecial: Troll nominee at 3rd or 4th rejection
sdhays
I just want to point out that the Republicans in the Senate are totally incapable convincing their voters that’s it’s better to replace Scalia with an Obama appointee that they have leverage over than a Hillary appointee over which they have none. It will never happen. The Republican base is fixing to nominate Donald Trump and they are thinking “this is FINALLY our year! The year those unworthies are finally shown their PLACE!”. Republican candidates will want to channel the horror that their voters feel with Scalia gone and ride it to victory in November. To do otherwise would be to assure defeat since they would very likely see lower turnout since there would be a feeling that all is lost.
I think if they let Obama appoint Scalia’s replacement, the Republicans would not only lose the Presidential election and the Senate, but the House as well.
HL_guy
Would not Srinivasan be *perfect* as the first Asian-American (yes South Asian, so maybe not 100% perfect, but still) SCOTUS nom in an election year? I mean, thinking long-game, the Republicans have already walled off the African American and Latino voting blocs for a generation. Do you think they REALLY want to lose Asian Americans (in whom they might find some constituency) for a similar length of time?
Second, are any majority members of the Judiciary Committee up for reelection this year? That would seem to help. Of course, Jefferson Davis Beauregard Grand Dragon Sessions the XIIIrd and Rafael ‘Canadian not to be confused with Raffi’ Cruz are on that committee, so it’ll be a rough ride anyway, but it seems to matter who else is.
BBA
I expect McConnell to announce that the Senate will only confirm Janice Rogers Brown for the job. Now this may be seen as usurping the President’s power to choose the justices, but the President refuses to respect the Constitution and Congress is merely asserting its prerogative.
This is of course complete bullshit but nobody can listen to more than two sentences McConnell says without falling asleep, so of course nobody will have any comment on it.
My point is, the slow-motion constitutional crisis of the last five years just sped up.
Technocrat
It occurs to me that it would be difficult to replace Scalia with anyone that doesn’t move the court left. He was the type of appointee that only Reagan could get away with – in the 80’s.
redshirt
@BBA: It is a crisis too, just that Obama’s handled it perfectly, and so it hasn’t been a big deal.
Yet.
Joyce H
Frankly, I think Anontin’s last act on this earth was to ensure that the White House stays Dem and the Senate flips Dem. Because this happened when the Repubs running for president are still in ‘appeal to the base’ mode, and they’re all going to be swearing up one side and down the other to appoint a Scalia clone, at the same time retrospectives are reminding the rest of us about The Best Of Antonin Scalia. It’s going to scare liberals and moderates senseless, to the point where they’d crawl over broken glass to get to the polls in November. The Senate could refuse to vote on an Obama nominee (which will be a moderate, because there’s a Republican Senate), and wind up next year with an unabashed liberal and perhaps two more. (Ginsberg is 82 and Kennedy is 79.)
Amir Khalid
@HL_guy:
Are you suggesting that an Indian-American is somehow less Asian by heritage than, say, a Chinese-American?
HL_guy
@Amir Khalid: Nah. I debated phrasing, and it does sound like a ‘ranking’ but I’m really trying to reflect that my understanding is that the rate of immigration from China is higher than India, and I don’t want to overgeneralize about ‘Asians’ as a voting bloc when there are certainly cultural and identity differences between ethnicities. Thinking that way, a Chinese-American candidate wouldn’t be ‘perfect’ either. Perfection is… not attainable. I think he would make a really strong nominee.
Bob In Portland
Looks good to me. Besides the obvious (Scalia in another plane), and how the current eight-member panel and its cases break to the left’s benefit, this will be a great way to rally Democratic voters. There could be lots of gains up and down the ticket with the Repubs carrying around Scalia’s body.