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Thursday, January 05, 2017

What next on the Scalia vacancy?

Merrick Garland's nomination to fill Justice Scalia's seat on SCOTUS lapsed at noon Tuesday and President Obama did not (as some hoped, but I doubted) push through a recess appointment that would have been short-lived and symbolic. And would have given Donald Trump another D.C. Circuit appointment. In the overall scheme, this seems the smart move politically.

The question is what next. Incoming Senate Minority Leader Chuck Schumer said that Democrats will filibuster any nominee unless the President presents a compromise nominee that both sides can support. Of course, I cannot for the life of me imagine who that would be or what that nominee looks like ex ante. It was not obvious that David Souter would be David Souter when he was nominated in 1990.

The big question is whether Democrats really could hold the line for between two and four (depending on what happens in 2018), including the eight Senators who are up for reelection that year. What will the political pushback look like? The Republicans got away with it for a year, both as a party and as individual Senators running for reelection. But so much else was going on this cycle that Democrats were never able to keep the public focus on what was happening with the nomination. Would the Republicans be better at keeping public attention on, and nailing Democrats with, obstruction, with less going on and more focus on individual races? Would they be able to hurt sitting Senators (especially in red and purple states) for their unwillingness to give a vote to this wonderfully qualified nominee who is being unfairly left in limbo? My guess is yes, because Republicans are better at this (and Fox News helps).

Also, do the optics of refusing to allow a vote following a hearing play worse than the optics of refusing to hold a hearing at all? Logically, there is no difference between two forms of refusing to act on a nomination--one involves the tools of a minority, the other the tools of the majority. But it is a distinction that Trump and Mitch McConnell could use and people might buy. And the qualifications of  the Trump nominee following a hearing will be more vivid than the discussion of Garland's qualification. In addition, if the public at least tacitly accepted (or at least did not reject) McConnell's framing that the next President should fill a vacancy that arises in an election year, will Schumer be able to make his reframing--that Republucan obstruction stole an Obama nomination, so this is warranted reaction--stick?

Of course, the Republicans have several aces in the hole (we no longer can refer to trump cards). They can eliminate the filibuster on SCOTUS nominations, as the Dems did for lower-court and executive nominations (a move Schumer now says he regrets). Also, if the Democrats filibuster and it seems to be holding into OT 2017, we will see if Chief Justice Roberts miraculously discovers his inner Taft and starts lobbying against playing political games with the membership of his Court (something he was not inclined to do in the face of this year's Republican obstruction).

Finally, when the system breaks down is when strange compromises--that leave no one satisfied--can find a footing. Could another year of obstruction set the table for groups from both parties to latch on to Eric Segall's permanent eight-person Court or some other plan to break the impasse over SCOTUS appointments (such as the Carrington/biennial appointments plan)? The opportunity for this goes away once Scalia's seat is filled, because we are unlikely too see an evenly partisan-divided Court (unless Kennedy is next to leave the Court, not Ginsburg or Breyer). The plan works for the Democrats now. Republicans might prefer this plan to never filling the vacancy (if Democrats are serious about a filibuster and Republicans are not inclined to take the last step of eliminating the filibuster), if Trump will get other spots to fill, as he likely will.

Posted by Howard Wasserman on January 5, 2017 at 09:31 AM | Permalink


A minority blocking a vote might be spun differently than a majority deciding that it is so obvious they don't like a particular candidate that they won't waste time with committee hearings.

Posted by: Jr | Jan 8, 2017 6:07:54 AM

The precedent set by the Republicans in refusing to even bring Garland's name up for a vote is both troubling and dangerous, but I agree with your assessment that seems to suggest that the Republicans would pay a lesser price than the Democrats if the Democrats responded in kind with any Trump nominee. I nonetheless expect the Democrats to do the same thing (as the Republicans), and for the Republicans to then employ the so-called "nuclear option" and get rid of the filibuster. As the bitter partisanship of the past 20 years or so has conclusively established, what is sauce for the goose is not always sauce for the gander.

Posted by: Ian Sirota | Jan 6, 2017 11:46:12 AM

Quick update: So far, all I am finding are reports that presidents since Washington have treated elevation of a sitting judge as creating a "contingent" vacancy on the lower court for which the president could make a nomination. So everyone proceeds on the belief that the elevated judges vacates his prior position. I just have not been able to find the source of the obligation.

In any event, it is clear as a matter of practice that putting Garland on SCOTUS would have created a DC Circuit vacancy.

Posted by: Howard Wasserman | Jan 6, 2017 9:29:23 AM

The same way Congress can say that the judge must go through a new confirmation vote and receive a new commission to take a seat on a different court (or the same Court, as when Rehnquist or Stone was elevated from Associate to Chief). Congress has declared that each is a separate and distinct judgeship for Article III purposes. So, it seems to me, Congress can establish that acceptance of the commission on one court constitutes resignation of the commission on the prior. No Article III problem, because she still has tenure and salary.

But Steve's persistence on this is sending me back to Westlaw.

Posted by: Howard Wasserman | Jan 6, 2017 7:43:53 AM

Howard: How could there be a statutory requirement, given that federal judges serve during "good behavior" and are removable only by impeachment?

Posted by: Steven Lubet | Jan 6, 2017 6:05:20 AM

Steve: I believe it is a statutory requirement, although I have not been able to track down the provision. Still looking.

Joe: short-lived would mean less than a year at most, as the appointment would lapse at the end of the first session of the 115th Congress. And that's assuming Congress didn't pass a law declaring Session One over on February 1, causing the appointment to lapse. That's pretty short term, allowing him to participate in maybe 40-50 cases.

Posted by: Howard Wasserman | Jan 6, 2017 12:49:01 AM

I would have to think that the intersection of the set of judges in Trump's campaign promises and the set of judges Schumer would describe as compromise candidates is the empty set. So Schumer's position here is mathematically incompatible with the rollback of the fillibuster (which he did oppose at the time). My conclusion is that Schumer is looking (desperately) for some sort of angle to preserve the fillibuster on SCOTUS appointments, and this statement is battlespace preparation. He is faced with the task of making Trump's list of judges look unreasonable, immediately after an election where the that selfsame list was a campaign issue (therefore making them the closest thing to an elected SCOTUS justice we are likely to ever see). That will require politicking at whole level higher than a "Borking".

Posted by: M. Rad. | Jan 5, 2017 11:54:16 PM

Trump has another seat to fill on the DC Circuit anyhow with Judge Leon taking senior status in 2017.

Anyway, what does "short-lived" mean here? Granting on balance it wouldn't be worth it (there was no "recess" per the Supreme Court in an opinion written by Breyer anyway), I'd note that even the short term vacancy thus far was not merely "symbolic" -- the liberals won something in the process.

Next, Souter was somewhat surprising, but Sen. Rudman supported him & he turned out to be the sort of moderate Republican of that ilk. So, the black box nature of justices there tend to be somewhat exaggerated.

The overall comments of the post are interesting and since it's a question mark, I'll leave it be. But, I do think McConnell is a crafty sort. He won. So, he very well might think the ideal choice is a conservative that isn't blatantly divisive. Judge Pryor here to me is red meat they don't need. The woman state judge (who voiced strong support of Scalia) would be an ideal choice. A bit outside of the box, a relatively new state judge (shades of O'Connor but seems more conservative), but probably mostly "safe" in their eyes. Meanwhile, besides being a woman (which will please some on their side), she is "mainstream" enough, especially since red meat like Pryor (with more of a controversial paper trail too) is avoided.

We shall see what happens.

Posted by: Joe | Jan 5, 2017 3:37:04 PM

Howard: Why would he have had to resign? There is nothing in Article III that says so. John Jay held two offices simultaneously. I realize that it would be unseemly not to resign from the DC Circuit, but I don't see any actual requirement.

All moot now, of course.

Posted by: Steven Lubet | Jan 5, 2017 2:46:39 PM

I tend to think that Schumer's remarks are a scare tactic to get Trump to not nominate someone like Pryor, who's said Roe was the worst decision in the history of the Supreme Court. I don't really believe they intend to filibuster someone like Kethledge or Joan Larsen. Of course, some senators will filibuster, and most Democrats will vote against a nominee of that ilk, but I don't think they'l muster up 40 votes to filibuster them. The hope, on this theory, is that Trump trades off a bit of doctrinaire-ness in order to get someone on the Court before the end of the term. I don't think Schumer really has complete control over his caucus on this issue anyway.

Posted by: Asher Steinberg | Jan 5, 2017 2:43:12 PM

Steve: Because Garland would have had to resign his DC Circuit seat to join, even on a temporary basis, SCOTUS.

Asher: That's my point--there is no one who would be acceptable to both sides. I am sure there are some. But the Dems do not know who would vote like Souter (I don't think the Dems are looking for another Kennedy, who is largely a typical conservative except for free speech, LGBTQ rights, and extreme (but not all) abortion resrictions) once they got to SCOTUS. So the default would be to oppose everyone (recall the criticism of the Souter nomination at the time). And the Republicans are not taking any chances.

Posted by: Howard Wasserman | Jan 5, 2017 1:58:04 PM

"Incoming Senate Minority Leader Chuck Schumer said that Democrats will filibuster any nominee unless the President presents a compromise nominee that both sides can support. Of course, I cannot for the life of me imagine who that would be or what that nominee looks like ex ante. It was not obvious that David Souter would be David Souter when he was nominated in 1990."

I think there are any number of capable judges who would exhibit Souterian/Kennedyesque voting patterns if they joined the Court. Leaving out a couple who I know personally and don't want to embarrass, and sticking only to judges nominated by Republican Presidents, consider Debra Livingston (CA2), Kent Jordan and D. Brooks Smith (CA3), J. Harvie Wilkinson, who could be attractive to Republicans if they don't want another swing-vote moderate for another 30 years, maybe Sandra Ikuta (CA9), though I don't know how moderate she is, or for fun, Kozinski. I think the trouble, rather, is that Republicans wouldn't actually accept anyone who they thought would be a Souter or even a Kennedy. They would much rather eliminate the filibuster than nominate or confirm another Justice who would reaffirm Roe and have other positions they find unacceptable.

Posted by: Asher Steinberg | Jan 5, 2017 1:36:30 PM

"And would have given Donald Trump another D.C. Circuit appointment."


Posted by: Steven Lubet | Jan 5, 2017 11:34:49 AM

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