Princeton Election Consortium

A first draft of electoral history. Since 2004

President Obama lays out his views on Supreme Court nominees

February 24th, 2016, 9:17am by Sam Wang


Over at SCOTUSblog, the President discusses his views on what he looks for in a Supreme Court nominee. This is an initial shot, aimed at the legal elite.

The Republicans on the Senate Judiciary Committee have pre-emptively refused to consider any nominee, an unprecedented move. My guess is that if the summer’s Senate and Presidential general-election polls favor Democrats, the Judiciary Committee might soften in their position.

(Postscript: At the bottom of this post, see M. Dodge Thomas’s comment on how the ways in which Republican obstructionism is counterproductive to their own interests – and the forces that lead them to do it anyway.)

Tags: 2016 Election · President

53 Comments so far ↓

  • Eric Walker

    As to how the Judiciary Committee might react to summer polls: first, I suspect that Republicans are still living in the same echo chamber that produced “unskewed polls” and led to sheer, shocked disbelief on election night.

    But if they are not, one can reasonably predict, even now, that a presidential victory for the Democrats is highly likely. While such polls as exist now are meaningless, all one need do is ask how many voters that went Democratic in the last two cycles are likely to suddenly vote Republican by enough to swing any state’s electoral votes. The “Blue Wall” still exists, no matter how much clickbait Nate Silver tries to generate by belittling it.

    So a rational strategy (no laughs, please) would focus on trying to retain the Senate (and the few marginal House seats). By that standard, the Republican actions seem at least a little less crazy. The suggestive indicator is that McConnell has given the party’s quasi-official blessing to Senatorial and other candidates to disavow Trump; thus, the base can get excited about the Supreme Court without the baggage of having to voite for Trump to deal with it.

    They are, of course, taking the gamble that the Democratic base (and independents) might get even more fired up, but at least that’s a plausible gamble, not sheer lunacy.

  • M. Dodge Thomas

    While I think I understand the immediate electoral imperatives that drive the policy of obstruction, I keep wondering about the opportunity costs.

    If the Republicans had wanted, they could have negotiated with the Obama administration on issues such as health care to have produced legislation that would have realized some their fondest policy objectives circa 2000, and in the process could have taken credit for “improving” the results.

    Instead, whether they are dealt good cards or bad on a given policy issue, their strategy has remained one of pure obstruction fueled in the short run by fear of primary challenges and longer-term by the belief that eventually voters will see the light and bring them to a position where they hold both the presidency and Congress, and can completely realize their legislative objectives.

    On the whole, over the last eight years this is gotten them little if anything worth having in terms of actually moving policy to the right (the exception has been the Supreme Court, but even there Obama’s appointments have prevented the court for moving even further right): from a conservative perspective this policy may have prevented things from becoming worse, but also forgoes most legislative opportunity to make them better.

    Now, Senate Republicans are again offered the same sort of choice: they can leverage their power to obstruct to force Obama to appoint a relatively “moderate justice”, with the maximum downside that the Supreme Court will become considerably less effective vehicle for advancing the conservative agenda.

    Or, they can obstruct the nomination entirely, but at the cost: if they lose the election a that Democratic president and a Democratic Senate will certainly approve one (and may have the opportunity to approve several) more “liberal” justices, which would guarantee a Supreme Court actively opposed to conservative policy objectives for at least a decade.

    This is exactly the same gamble Republicans have been taking, over and over, for the last eight years, and appears to me to have a substantial likelihood of painting them into a tighter and tighter corner.

    For example, if a Democratic president is elected and Republicans lose the Senate, they lose virtually all their leverage over Supreme Court appointments, if they hold the Senate during another Democratic administration , they will be forced to either accept it much more liberal Supreme Court, or to ratchet up to a level of absolute obstruction of Supreme Court nominees, which may please their base, but has the potential to be a truly disastrous long-term electoral strategy.

    Interestingly, this aspect of the choice is covered the US press as a schoolyard shoving-match rather than a question of rational political calculation – you can read or watch weeks of such coverage without encountering any discussion at all of the deeper strategic issues facing the Republican Party – at best you read superficial discussions of whether this will hurt or help Republican chances this November, there is no discussion at all of the debate that has to be playing out amongst Republican strategists over the longer term implications of the policy of obstruction, and especially of what happens if the Democrats hold the presidency and retake or tie the Senate.

    • 538 Refugee

      Last night I was trying to understand the rise of Trump. I wondered if the Republican primary is a case of ‘you reap what you sow’ in terms of their obstructionist ways. Bluster is virtue. Tell people what they want to hear. Stake out an extreme position and don’t waver. Demand all or nothing. The party has no one to blame but themselves if they don’t like the outcome they get.

    • JayBoy2k

      Well thought out. You raise a lot of issues. I do not know where we have agreement. In my mind, this is pure politics on both sides. The SCOTUS to a lesser extent is in the grip of the same partisanship that grips political parties, politicians, and the voters. It is the red team – blue team concept. Breyer, Kagan, Sotomayor, and Ginsberg vote solidly in alignment with the principles of the Democratic Party. Same with Alito, Scalia, Thomas, Roberts (Obamacare?) for the Republicans. By voting pattern we have exactly 1 moderate = Kennedy.
      We need to replace Scalia, the most conservative justice, but it is very likely the next President will replace at least 2 more including Ginsberg. Most votes are naturally 5-4, take the most consistent conservative vote off SCOTUS and replace with a true moderate (someone like Kennedy who would vote on both sides as the swing vote) and the court’s decisions swing left just based on replacing a conservative with a moderate. Consider if Ginsberg dies and the next Republican nominates a moderate. It would swing the balance of the court decisions to the right.
      Scalia dying is a disaster for the Republicans. There are few winning options.
      If GOP takes President and Senate, then obstruct Obama. If GOP takes President and loses Senate, Obstruct Obama.
      If GOP loses President but holds Senate, is Hillary really going to nominate someone to the far left of Obama to start her term when GOP holds both houses?
      If DEMs take President & Senate, does not make that much difference. Court is going to swing left whether it is Obama’s or Hillary’s appointment.

      Until you can get polls to make the outcomes obvious, it makes no political sense for Republicans to approve an Obama nominee.
      For the record, I believe that Republicans should run the normal process, get to a vote on Obama nominees with a Republican Senate. Take this issue off the table. I do not see Republican voters caring about this issue and it is hard to imagine that Republican Senators will go against the wishes of Republican voters in an Election year. Most Republican Senators in blue states are going to lose no matter what they do on this issue.
      I am anxious for Obama to stop talking and nominate someone. Then we could guesstimate how that Judge’s previous votes imply voting tendencies related to current SCOTUS caseload.

  • 538 Refugee

    Interesting article on survey fraud. This is not about US election polls and PEW has demanded the article be retracted.

    “But for the large-scale opinion surveys typically carried out in the developing world—many questions covering broad topics that are designed to identify the differences between communities—”this is exactly the appropriate method for detecting fabrication,” Kuriakose says.”

    http://www.sciencemag.org/news/2016/02/survey-says-many-surveys-about-one-five-may-contain-fraudulent-data

    We have several large call centers in our area. The turnover rate is tremendous. Several ads by the same companies in the classified section every week and sometimes the same company has multiple ads disguised to look like different companies to appeal to different people I guess. This has got to be one of the least desirable jobs possible it seems. It was revealed that many make less than minimum wage because they are convinced they will make more if they go ‘performance based’. What could possible be wrong with this picture?

  • 538 Refugee

    I read an oblique reference somewhere that refusing to even consider a nominee is a constitutional issue and one supreme court justice has indicated they would get involved if this was brought to them.

    • Avattoir

      “somewhere”? R U asking? Seems like it’s something a person inclined to visit here would want to bookmark.

    • 538 Refugee

      I read a lot of stuff on line and sometimes it just takes a while to sink in. Some articles are pretty long and I’m clicking on links in them to other articles. I go down some pretty deep rabbit holes sometimes. But this is the kind of thing I would expect to get picked up and repeated if true. So, yeah, basically I’m trying to see if anyone else read this. I may even be mistaken about it being a supreme court justice but I’m pretty sure it was a judge that would expect to get the case.

      On the face of it an outright refusal to even act on a nomination would seem to be the senate shirking its constitutional duty. Is that the basis of legal action?

    • DaveM

      Here’s a somewhat relevant 2013 article from the Yale Law Review. It specifically addressed Executive Branch nominations, but the constitutional issues appear to be similar.

      http://www.yalelawjournal.org/pdf/1129_pb467jtz.pdf

    • pechmerle

      Prof. Stephenson’s arguments on the advice and consent function of the Senate in that Yale L. J. piece are interesting and creative. As he himself notes, however, failure by the Senate to act on a nomination should not be taken as consent by inaction in the instance of judicial appointments. Essentially, his point there — and one I think is valid — is that the judges [and esp. Supreme Court justices, a point he doesn't emphasize because it wasn't salient when he wrote] don’t serve “under” the President and carry out his functions, as “senior principal executive” appointees do.

    • 538 Refugee

      I’m not a legal scholar but it seems dubious at best to me. The constitution lays out an action, not an inaction.

    • LondonYoung

      Article 1, Section 5 of the constitution says “Each House may determine the Rules of its Proceedings”.
      If another branch of government began to decide that senate silence was consent, I suspect the senate would simply resolve that “this body consents to appointments only via affirmative vote, all other appointments lack the consent of this body until such a vote is taken”.

    • 538 Refugee

      And therein lies the problem. We are now into ‘ mind reading’. When does the lack of consent become known’? Week,? Month? Year? And the Republicans want someone that ‘strictly interprets the constitution’? Rich stuff here.

    • LondonYoung

      Yeah, Article 1, Section 7, clearly gives the president only 10 days to act on congress’s laws (and silence = consent), but it doesn’t set a time limit on the senate to act on the president’s nominations. I presume Section 5 allows the senate to set its own time limit along the lines of NLRB v Canning: “the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business”.

    • Sam Wang

      The basic issue here is that acting on a nomination is an unwritten tradition that keeps the U.S. Senate working smoothly. Another example of such a tradition is dealmaking to avoid invoking the supermajority rule very often. The deterioration of the Senate is a decades-long trainwreck that Congressional scholars Mann and Ornstein have documented.

      When these traditions fall apart, what do we do? The solution is probably to change written Senate rules. Possibilities include doing away with supermajority requirements and requiring the consideration of nominations within a fixed period of time.

    • LondonYoung

      Mann and Ornstein style dysfunction of the congress is an important part of the problem, but the bigger one, IMHO, is that the framers just didn’t think anyone would care who sat on the court – they didn’t even specify how many judges there should be.

      E.g. look at gerrymandering. The 14th amendment was passed about 150 years ago, and states have happily gerrymandered all that time. Now, as readers of this blog well know, the court is in the process of putting that history aside and saying “hey, as of 2016 no more gerrymandering, we’ve decided an amendment from 1868 makes it illegal”.

      This makes the court as powerful as 3/4 of the states ratifying an amendment. Unwritten traditions can’t survive that kind of pressure.

      Time for the senate to have 10 days to respond to the president’s picks.

  • A New Jersey Farmer

    The person that Obama nominates has to be comfortable with the idea that they might never be on the court. If the Senate stalls or votes them down, they’re done. Having Hillary renominate that person would be a losing proposition too.

    • Owen

      That’s why it won’t be Kamala Harris, for instance. She has better things to aim at. But the usual appeals court judges have the all the time in the world and live for the chance to move to the Supremes.

      If Democrats win the White House and the Senate, renominating a candidate that stood out well under pressure could be seen as heroic.

      But ultimately as long as there are no skeletons, Obama’s nominee is very likely to be confirmed during his term. Senate Republicans can’t afford to have six races in blue pro-choice states be turned into referenda on Roe all summer long. If they do persist in that foolishness, they’ll lose at least four seats, therefore Democrats will control the Senate, and the nominee will be confirmed between 3 January and 20 January 2017.

    • Matt McIrvin

      If the Senate just refuses to even hold hearings or vote on the grounds that this person was nominated by Obama, I see no reason that would reflect badly on the nominee. Probably a Democratic President in this environment isn’t getting anyone confirmed until the Senate flips. But whenever that happens, it seems to me that bringing up these stalled nominees again (if they’re still interested) wouldn’t be particularly controversial.

    • Avattoir

      That leaves a LOT of people, even among judges.

      The total allotment SCOTUSi at their maximum doesn’t amount to beans in this cockamaymee world. Those 9 all together are about a 5th of a per cent, or 25 in ten thousand, even just in comparing them to federal district trial, appeals, and circuit court judges.

      What that means is that, sure, the ones suffering from the most severe cases of hubris might expect to get to the SCOTUS, but most of federal court judges below that surely are smart and stable and self-aware enough to know that ain’t happening. So, what’s left over is a big pool of candidates for this ceremonial role, well over 2000 I’m figuring, of which Bill Clinton and Obama were responsible for appointing close on 700. They should find dozens of suitable, willing, even cheerfully heroic goats in that pool.

  • JayBoy2k

    ” My guess is that if the summer’s Senate and Presidential general-election polls favor Democrats, the Judiciary Committee might soften in their position. ”
    Sam,
    Is this not a tipping point type of joint decision where both sides have an opportunity to direct the outcome?

    So, if the polls indicate that Democrats take 54 Senate seats and Hillary wins, then
    No reason for the GOP nominee (Trump, Rubio, etc) to support settling for Obama’s choice. The nominee would bludgeon McConnell and the Senate Rs if they even thought of changing because it would be the best position for the campaign. Same discussion with close Senate races.

    If the Democrats could reasonably get a much more liberal SCOTUS judge waiting for Hillary, would not Obama be under tremendous pressure to pull his nominee back?

    Not positive, but these could be very difficult calls in the middle of a campaign.

  • Marvin8

    If the GOP is willing to double down on it’s SCOTUS intransigence now, what makes you think they won’t do it even if a Hillary or Bernie is the next president? I think they’d be perfectly happy not having 9 justices for as long as it takes to get an ideological doppleganger for Scalia…whether they have a majority or not (filibuster) in the Senate.

    • Anthony

      I’m not sure, but I really hope there is a possibility of a rules change to the filibuster if the democrats retake the senate in November. There is a good chance they take it, but not with a 60 vote majority.

    • Froggy

      If the SCOTUS vacancy remains unfilled, and either party gets control of both the Senate and White House in the elections this fall, there is zero chance that a minority party filibuster of a Supreme Court nominee would be tolerated.

    • Anthony

      @Froggy – What makes you so sure? Republicans have been perfectly willing to obstruct in the past without consequence. Government shutdown -> Won 2014 Midterms.

    • Froggy

      Anthony, the Democrats already did away with the filibustering of lower court nominees, and if they are forced to leave the vacancy open and win another election in order to fill it, I can’t see that they’d actually let the Republicans keep and actually use the power to prevent them from filling the seat. The Republicans abused the filibuster to block lower-court judicial nominees before, and there was indeed a consequence — check out the change in the balance on the DC Circuit since the nuclear option was triggered in 2013.

  • Olav Grinde

    WaPo claims the White House is vetting Governor Sandoval for a possible nomination. No doubt one of many people being vetted…

    How would that nomination play out in the Senate?

    https://www.washingtonpost.com/news/powerpost/wp/2016/02/24/brian-sandoval-republican-governor-of-nevada-is-being-vetted-for-supreme-court-vacancy/

    • Froggy

      “At 1:07 p.m., the Washington Post reported that President Obama is considering nominating Republican Nevada governor Brian Sandoval to take Antonin Scalia’s place on the Supreme Court. … Less than an hour after the Post’s story went up, majority leader Mitch McConnell and Judiciary Committee member/majority whip John Cornyn had already both made it known that their vow of intransigence extends to Sandoval as well.”
      http://www.slate.com/blogs/the_slatest/2016/02/24/republicans_against_republican_supreme_court_nominee_cornyn_says.html

    • Liv

      I was wondering just yesterday if Hillary would consider Sandoval as a VP pick. They don’t seem too far apart in terms of policies, and she could lay claim to Republican voters who were disgruntled with a Trump candidacy.

    • Olav Grinde

      Froggy, regardless of the public announcements of McConnell, Cornyn and the rest of the Grand Obstructionist Party, I their intransigence will last only as long as it serves their purposes.

      It is up to President Obama, Schumer & Co, and the Democratic campaigns, to make sure the GOP starts paying a price that its leadership eventually deems to be intolerable.

    • bks

      Sandoval has taken himself out of consideration.

  • Anthony

    I hate the say this since Supreme Court nominees shouldn’t be a fight about politics, but Obama should (and probably will) use this as political leverage over some demographic in the general election to secure some demographic vote. I don’t think he needs to put up another woman since he has already put up two and got the maximum political leverage out of that, so he should definitely nominate either a well qualified Black or Latino. Maybe a Black or Latino woman. In an ideal world where Republicans were rational actors he should put up the most qualified moderate available, but thats not the world we live in unfortunately.

  • Richard Hershberger

    The most amusing suggestion I have seen is that Obama nominate this person:
    https://en.wikipedia.org/wiki/Maryanne_Trump_Barry

    Oddly enough, it at first glance wouldn’t be a ridiculous choice.

  • Amitabh Lath

    Republicans are obviously hurting themselves, having “pre-emptively refused to consider any nominee”. So the question is why? There must be some compelling reason that overshadows the obvious negatives. I suspect a feeling of weakness in the face of obvious revolt against the Republican establishment, as it is playing out in the primaries. In such situations intra-party signaling becomes more important.

    • JayBoy2k

      It seems pretty clear from the statement on the SCOTUSblog “….. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. ”

      A constitutional originalist like Scalia would not be considered and that is the basis for the disagreement between the 2 sides.
      I can not tell from the analysis in the NY Times or Washington Post. What are the descriptions of positions/decisions that would be viewed most/least favorable by Liberals or Conservatives?

      I look forward to actually naming a nominee. The pundits will vet all these questions.

    • MAT

      Amitabh,

      Josh Marshall took a stab at this very question – why now?

      http://talkingpointsmemo.com/edblog/a-lot-weaker-than-they-look

    • Doctor Science

      I suspect a feeling of weakness in the face of obvious revolt against the Republican establishment, as it is playing out in the primaries. In such situations intra-party signaling becomes more important.

      If by this you mean “this is what the Republican base demands, and that base is very forceful” I agree completely.

      GOP Senators cannot do politics (=their job) as usually understood. They have to perform for the base, and what the base wants is utter rejection of Obama and all he stands for. Anything else will be considered “weak”, tricksy and false, and will attract a fecesstorm of abuse.

      It may doom a bunch of GOP Senators in the fall, but it’s the only way to keep the base from rising up against them before then.

    • Sam Wang

      Logically, does that mean an accommodation after primary season is over?

    • Doctor Science

      Sam:

      *Logically*, it should. I don’t think logic is likely to be a big player in the GOP later this year, especially if (when) Trump becomes their nominee.

      No, I think the base (and probably those donors who are thinking like the base) will continue to demand “strength”, 24/7. Any accommodation to Obama, in any way shape or form, will count as weakness and betrayal. Reality, politics, thinking about the future — *none* of it will be acceptable.

    • Avattoir

      JayBoy2k, I’d suggest you avoid getting caught up in that “originalist” diluted horseshit flavored backwash. It’s one sort of desperately limited idea that mostly is trotted out to disguise partisan politics, because the necessary resources for performing it properly are missing and the gaps will never be filled – they can’t be; these are events of human conception, not buildings or DNA or whatever other thing is subject to scientific objectivity. Scalia early on claimed he was one, that he always used this one approach, and wrote a book about it; but even the book – go read it yourself – shows the problems, including that Scalia himself couldn’t build up a rational way to apply it. It’s like the sort of things Casey Stengel often said and Freddie “The Fog” Shero ALWAYS used to say when they were active in pro sport coaching: magical sounding bafflegab.

  • 538 Refugee

    It will be interesting to see who Obama ultimately nominates. If he believes the Republicans will leave the nomination on the table and not act on it, then it could be someone that will bring out the black vote in November to secure his legacy. This assumes some consultation with the current Democratic hopefuls.

    Obama will undoubtedly trot out his time teaching constitutional law as making him more qualified than most to make the pick. It will be interesting, in a sad sort of way, to see how this eventually plays out.

    • Olav Grinde

      I would like to see Senator Schumer whisper in McConnell’s ear:

      “If you refuse to consider the President’s SCOTUS nomination, then President Hillary Clinton / President Bernie Sanders have promised to … nominate Barack Obama as the next Supreme Court Justice! Your call, sir.”

    • Some Body

      Olav, Obama could actually be a great SCOTUS justice, if he wants the job, but I suspect he’d rather get a bit of rest first.

    • Avattoir

      Some Body – it wouldn’t be owing to needing rest. Go back to Obama’s days at U of Chicago as a session lecturer/prof mostly on the issue of Voting Rights, community-based voter organizatik and the Constitution; read what he wrote, what’s been reported on his lectures, listen to what he said in public, including on talk radio. What I think you’ll glean from that is that Obama essentially ‘gave up’ on focusing primarily or even largely on court action as a reliable means to advance the liberal/prog/New Deal/MLK/JesseJackson consensus of ideals, that it would go faster and be more lasting and effective thru the election process.

      He doesn’t want a SCOTUS appointment at all – nor would McConnell and his maniacs be in the least deterred from opposing him were he to be nominated – which he will not be.

      Look, there are 320 million stories in the Naked Country, and one in every thousand of those is of an attorney. There’s really no shortage of much better choices for apointment to POTUS than Obama would be.

      I do join with Scalia on the one things he ever seriously asked of Obama, which President Obama actually delivered on: ‘Send us Elena Kagan’, said Scalia. She’s really been terrific so far, and should be chief.

    • Matt McIrvin

      @Avattoir: I think I agree with you on this: I get a strong sense from Obama’s recent statements on his post-presidency that he’s relishing the prospect of going back to non-governmental public advocacy. I doubt he wants to be appointed to anything.

    • Matt McIrvin

      …Scalia actually asked for Kagan to be nominated during the period when Obama nominated Sotomayor. But he got around to nominating Kagan eventually.

  • Olav Grinde

    Adalberto Jordan might be a fine choice. He’s a Cuban-American with a sterling record.

    I would love to hear Ted Cruz and Marco Rubio explain to the Cuban community why they’re obstructing his appointment. And the Republican Senate is certainly not going to endear themselves to Hispanic/Latino voters by refusing to even talk to him!

    http://www.nytimes.com/2016/02/15/us/politics/potential-nominees-obama-may-consider-to-fill-antonin-scalias-seat.html?_r=0

  • DanF

    If the past is any guide, Obama has been very good at getting his way in moments of brinkmanship with the congress. If he doesn’t get his nomination before he leaves office, I think he’ll make the senators look more foolish than they already do and he’ll exact electoral damage on their presidential nominee.

  • mediaglyphic

    The third point “an understanding of the way the world works” might favour Kelly over Srinivasan, and perhaps Nguyen might also get some points,

  • GEin NY

    If the republicans block Obama’s Supreme Court nominee, will that have an affect on the General Election? Blocking includes no confirmation hearings, no vote and not even a courtesy meeting with the nominee.

    Is there a way to measure this? It would make for an interesting poll.

    • Matt McIrvin

      It might be difficult to get people to care much; I think for most voters this is Washington-inside-baseball stuff, just a bunch of those darn politicians going at one another. But the Democrats will surely be trying to get an advantage out of it.

  • Luis

    I keep seeing mentions of the Senate in commentary on SCOTUS (“maybe Dems will get a majority again”) but I’ve seen no competent polling/forecasts. Are you aware of any, Sam?