Today Obama held a presser predictably praising Scalia, who he despises, at least ideologically, then shaping the argument to try to break the resistance of the right in the arena of public opinion.
As I predicted here the plan is simple, and designed to get whatever Dems can out of this, so it’s all upside even if they do not get everything they want, including the seat appointed by Obama.
It’s critical going forward to not allow them to shape the debate and to use losing over time premises in freely against us.
1.) There is NO “obligation” (period, full stop!) for the senate to “give an up or down vote” here, even on a SCOTUS pick. There is no reason, as Obama tried to suggest today, for the GOP to show the constitution clause/phrase where they are *able* to do that. Their function is advise/consent. They can do so in several ways, such as allowing a vote or not, or voting and passing or rejecting a nominee sent up by the president or filibustering, which is also quite legal if they can meet the terms for that to be tried/sustained. Obama’s options are clear enough, and he CAN choose to nominate, but he cannot tell them what to do on it according to his preferences if they follow any or all options they choose to apply in response assuming those are legal ones.
2.) In 1960 Dems tried to roadblock Ike Eisenhower from making final days selections (especially by recess which he used generously) to SCOTUS. They are not in position to talk here therefore, and must not be permitted to act like the attitude of the party is unprecedented. Judging by nearly all of his picks, maybe they should have let him do some more, but I digress…
3.) The Schumer Rule means their leadership, especially by Chuckie himself cannot call foul over denying such appointments.
4.) Obama himself wanted a filibuster of Bush nominees, such as Alito. Hillary ditto. Now that he’s in Bush’s shoes, who was not even leaving office during an election year, he’s crying foul. That means he agrees not only legally but in principle to that valid concept. Now he claims “qualified” picks no matter their stripes ideologically, deserve a fair up or down vote. Sorry, bro.
5.) Using Kennedy’s appointment by Reagan as an example of election year selection is bad, because he was NOT that, he came in 1987. Cruz was right in the SC debate about this, apparently. AK came on board officially in early 1988 once he passed the process, it did not begin in an election year. Democrats DID fear a shift possible when Powell left, and Reagan came up with Bork. As is known, he got “Borked”, led by Ted Kennedy, and after a controlled substance use scandal resulted in D. Ginsburg going down in flames Reagan moderated his pick (something an Obama is unlikely to do as a return favor) with Anthony K. It’s true AK got confirmed, be he was no Bork, and the opinions since show that Dems won by not being so cooperative with an outgoing opposition president. Republicans get to Bork this time, fair is fair. Then the score is even.
6.) The senate has options to block recess attempts, such as using pro forma tactics and can use various methods to credibly legally claim no long recess is in effect to stop those maneuvers. There’s nothing unseemly about such an approach, in fact.
7.) Democrats can and would do exactly the same thing if the roles were exactly reversed, and everyone knows it, so no whining.
It’s hugely important for Republicans to use if at all possible the approach to NOT allow the issue to even come up for a vote. Obama can and likely will claim to have a selection at some point. He will probably do so with more than one person. If so, the action used should be the same as the one they and Democrats have used in the past, which is to “bottle it up” and not agree to any floor votes or even attempted filibusters.
Because this is a public relations war being fought by the left to either get senate Republicans to cave or to enthuse the Democrat base turnout in November out of anger, and if they cave depress turnout of Republican voters out of anger, etc.
They figure if they keep putting up “qualified” picks who seem nice, who are minorities, females, etc. they will eventually get some game changing concession, because the GOPe will be spineless as usual, like on a debt ceiling fight, and will eventually fold. They figure to “humanize” the pick, on purpose, and to do so is best achieved by getting them into an official process, only to be voted down or worse, filibustered, by “intolerant” and “unreasonably partisan” Republicans. Eventually, the hope is their resistance will be worn down by the constant distraction, and they will worry over losing in the Fall.
That’s a hill to die on. Sorry, it just is. If Obama gets his way, he WILL ensure any so-called moderate (those usually “grow” in office anyway) will have an under table deal on issue orientation fealty. The odds they will be vetted only on qualifications professionally is about nil. He’s been working to fundamentally transform us all since before he won office, so this is a sure thing.
While the left will claim it’s far more damaging to the right to not even allow it to the floor, and it’s true the public could balk, and count on the Dems to commission polls designed to get senators to cave over fear of their seat being at risk over holding firm, the best and only option if at all possible is to prevent them from even getting a foot in the door in a confirmation battle, even if the GOP knew they had the votes to defeat possible confirmations or to sustain a filibuster.
This trap is the first sign that the GOPe is going to cave. They should not even go there, and will have better odds not doing so.
As far as the claim of needing to fill a vacancy being unfair, that’s hogwash since the ties, assuming a 4-4 situation might often be expected on controversial cases will simply result in lower court rulings standing. This could help either ideological side, depending upon which case we are talking about. It does not help Dems in the TX abortion case possibly, or Repubs if a ruling is challenging a lower court that upheld draconian gun control legislation, etc. Finally, those cases can be dealt with again once a replacement is found to resolve that hypothetical deadlock.
It’s worth mentioning that there may be no special magic or rules about the exact NUMBER of justices. Has it not been true that at various times the number has varied? Is 9 exactly a holy commandment? We could go a year and change before adding one. There is no such thing, arguably, as this situation even being defined as a vacancy that requires rectifying as a republic. There’s no rush, but there is an imperative to allow feedback from the citizenry. That is the liberty loving elephant in the room.
The GOP should frame the issue as being that of the outgoing president in a lame duck shroud. They should insist Americans want to have a say in this selection because it is balance swinging scenario in this case and Scalia died suddenly without public warning while still seated.
Since Dems could as easily win in November as their foes, it’s fair for everyone. A Dem could then replace Scalia after all, and it would have complete legitimacy.