Replacing Supreme Court Justice Antonin Scalia

[Grinning Dragon]

Of course not, and didn't say that it was, I am just saying the Court would be fine for a while with just 8 Justices. After all on average, how many cases does the Supreme Court hear, something like what 8, 10, a dozen?

100-150 of the >7,000 it is asked to hear.

I see, guess you beat me to it.
This is what I found.
http://www.supremecourt.gov/about/justicecaseload.pdf

Plenary review, with oral arguments by attorneys, is granted in about 100 cases per Term. Formal written opinions are delivered in 80 to 90 cases. Approximately 50 to 60 additional cases are disposed of without granting plenary review.

[Grinning Dragon]

Interesting read one SCOTUS seat went unfilled for 841 days.

[Fartsniffage]

Do you really think the political situation in the US today is comparable to the situation 160 years ago?

Of course not, and didn't say that it was, I am just saying the Court would be fine for a while with just 8 Justices. After all on average, how many cases does the Supreme Court hear, something like what 8, 10, a dozen?

Well then what you said has basically zero relevance to what I said. gg

[Neon Trotsky]

One false assertion after another explains nothing.

The last time the Senate confirmed a Supreme Court nominee in a presidential election year to fill a vacancy that arose in that year was 1932. The last time that happened in a divided government was 1888.

Supreme Court vacancies don't even happen that often, let alone in election years so of course it's going to be a long time.

[Greed and Death]

I don't think it would be too terrible if the seat were left vacant, as I don't think there is a mandate that the seat HAS to be filled. The court could operate just fine with just 8. The Supreme Court started out with just 6, then was increased to 7 in the early 1800s, then increased to 9 in 1837, then 10 in 1863, then back down to 7 in 1866, then set to 9 in 1869 where it has remained.

And all those numbers were set by Congress so yes, there is a mandate that the number be what Congress said it should be.

Good point the Republican congress can simply reduce the number of Scotus justices to 7 (temporarily 8 until Ginsburg leaves the court).

[Fartsniffage]

And all those numbers were set by Congress so yes, there is a mandate that the number be what Congress said it should be.

Good point the Republican congress can simply reduce the number of Scotus justices to 7 (temporarily 8 until Ginsburg leaves the court).

A conservative party deciding that things that happening in the past are bad to conserve. Sounds like the GOP to me.

[Greed and Death]

I'm getting mixed information here.

No you are not, Scalia was a strong proponent of the 4th amendment. A search had to be reasonable to him, if it wasn't he tossed it.

Scalia liked the 4th amendment though he read it differently, most of the court read the search and seizure requirement to be based off a reasonable expectation of privacy Scalia read it as protecting from a violation of property rights and a handful of other traditional notions of property protection.

[Greed and Death]

Good point the Republican congress can simply reduce the number of Scotus justices to 7 (temporarily 8 until Ginsburg leaves the court).

A conservative party deciding that things that happening in the past are bad to conserve. Sounds like the GOP to me.

The court originally had 6 justices.

I supposed if they reduced the number they could which justices go without a formal impeachment.

[Fartsniffage]

A conservative party deciding that things that happening in the past are bad to conserve. Sounds like the GOP to me.

The court originally had 6 justices.

I supposed if they reduced the number they could which justices go without a formal impeachment.

Why stop there? They could just give the power to the British Supreme Court and then the EcHR. It would save money and go back to what was.

[AiliailiA]

From page 7 of this thread, dated February 13, 2016, hours after Scalia's death.

Saying conservatives don't have a majority isn't the same as saying liberals have one when the number of justices is an even number.

It does make the June SCOTUS rulings most likely very disappointing for conservatives. Too bad, eh.

Obama should have a nomination ready to go by March 15th.

supreme Court comes back into session next week!

I must apologize for being 11 hours off in my prediction.

You have no excuse. March 15th was already on the calendar to have five big primaries on, whereas there's a week clear after it.

Really, how did you guess that well?

[Greed and Death]

The court originally had 6 justices.

I supposed if they reduced the number they could which justices go without a formal impeachment.

Why stop there? They could just give the power to the British Supreme Court and then the EcHR. It would save money and go back to what was.

Too liberal Justice Thomas shall be the sole justice so say The Republican Congress.

[United Dependencies]

Why stop there? They could just give the power to the British Supreme Court and then the EcHR. It would save money and go back to what was.

Too liberal Justice Thomas shall be the sole justice so say The Republican Congress.

Ouch, not even Roberts is allowed on?

[Greed and Death]

Too liberal Justice Thomas shall be the sole justice so say The Republican Congress.

Ouch, not even Roberts is allowed on?

Nope Justice Thomas I sense the end of listening to oral arguments.

[Gauthier]

Ouch, not even Roberts is allowed on?

Nope Justice Thomas I sense the end of listening to oral arguments.

Only until they can clone Robert Bork.

[The Archregimancy]

One false assertion after another explains nothing.

The last time the Senate confirmed a Supreme Court nominee in a presidential election year to fill a vacancy that arose in that year was 1932. The last time that happened in a divided government was 1888.

That's not a statement of precedent; that's an observation on the scarcity of the phenomenon. The two are not the same. The reason that the Senate hasn't confirmed a nominee in a presidential election year that arose in that year since 1932 isn't because the Senate routinely rejects that type of nomination - which would indeed set a precedent - but because that very narrowly-defined set of circumstances hasn't occurred since Benjamin Cardozo was nominated and confirmed in 1932 (depending on how you count Thornberry in '68; see small print below); that the phenomenon hasn't unambiguously occurred since 1932 doesn't set a precedent for action (or inaction) by the Senate. It all depends on how you manipulate the data. I could equally well write that 'in the 20th century, the Senate has confirmed four out of the five nominees put forward by a president in a presidential election year*', and be just as accurate as your statement, while presenting the precise opposite impression of where precedent lies; I would also be using the word 'precedent' more accurately.

*Pitney nominated by Taft in Feb 1912; Brandeis nominated by Wilson in January 1916; Clarke nominated by Wilson in July 1916; Cardozo nominated by Hoover in February 1932. The exception was Homer Thornberry, nominated by Johnson in June 1968; but he wasn't rejected by the Senate, rather his nomination had to be withdrawn when the attempt to promote Abe Fortas from associate justice to chief justice on the retirement of Earl Warren was withdrawn over ethics issues - not because it was a presidential election year.


The below table, sourced from this link, "shows every name that was put into nomination for a seat on the Supreme Court in the last eighteen months of a president's term, and the outcome of those nominations. It also shows whether that president's lame duck status was official (due to term limits, having already declined renomination, or having already been defeated) or just possible (he was nearing the end of his term, but had the potential to run again)"



Quoting the substantive parts of the discussion that table is sourced from:

The data can be parsed in many different ways, but here are a few salient observations:

* 47 of the 112 justices in Supreme Court history were submitted in the last 18 months of a presidential term.

* Of those 47, 28 were confirmed, six were withdrawn, three declined the offer, two were rejected, and for eight no decision was made.

* Just over half of those 47 were placed into nomination by a president whose lame duck status was official.

* For official lame ducks, it is 11 confirmations, four withdrawals, three declines, one rejection, and five where no decision was made.

* The average length of time for a decision to be made is 37 days; the longest a nominee has languished is 261 days. There are 342 days left in Barack Obama's term.

* Late-term appointments were vastly more common in the 19th century than they are today. In part, this is because justices live and serve longer now, so there is less turnover. And in part it is because the Court's increased importance over time has caused more justices to strategically "time" their resignations and retirements; rarely does a seat come open in the third/fourth year of a president's term unless a justice dies unexpectedly.

The upshot is that there is no "tradition" of lame duck presidents withholding their Supreme Court nominations in order to "give the voters a chance to weigh in." The Court has business to do, the President has a role in making sure that business gets conducted, and no chief executive—including Ronald Reagan—has declined to fulfill their responsibilities because their time in office was short. Grassley, Rubio, and Cruz zoomed in on "80 years," because only two vacancies have occurred in the last 18 months of a president's term during that time (one each for LBJ and Reagan). Two instances does not a "tradition" make, however, and in any event, both of those presidents made a nomination.

There is some precedent for filibustering a nominee (or failing to take action, which was the 19th century equivalent). However, in each case where a nominee lingered for 100 days or more, the issue was not constitutional or legal but instead 100% political. Namely:

* Both John Tyler and Millard Fillmore were Democrats-turned-Whigs who assumed the presidency on the death of the incumbent (William Henry Harrison and Zachary Taylor, respectively). They weren't Whiggish enough for the Whigs and were considered apostates by the Democrats in Congress, so their nominees were punished. In fact, Tyler's failures (he only got one of six nominees approved) gave us the longest vacancy in Supreme Court history, at 27 months.

* Woodrow Wilson's nomination of Louis Brandeis outraged conservatives in Congress, who deemed the justice-to-be "too radical." There was also some amount of anti-Semitism driving opposition to the appointment, though it was eventually approved.

* LBJ's nomination of Abe Fortas to the chief justiceship (and Homer Thornberry to fill the associate seat that would have been vacated by Fortas) is the case that the GOP is currently hitching its wagon to; Cruz specifically mentioned it during the debate. In Fortas' case, Congressional Republicans were angry about the Great Society, Democrats about the Vietnam War, and both sides felt the nominee was too closely connected to the President, so they refused confirmation.

Certainly, it is entirely possible for Obama's nominee to be held up for the rest of his term. More than a dozen of his appointments to lower courts have already waited for a year or more. But the President's opponents cannot rest on "custom" or "tradition" or "precedent" as their reason. Sooner or later, as the president's choice waits longer than any appointee ever has, it will be obvious that the delay is pure politics. And at that point, the question will be whether the calculus adds up for the GOP.

[Ethel mermania]

The last time the Senate confirmed a Supreme Court nominee in a presidential election year to fill a vacancy that arose in that year was 1932. The last time that happened in a divided government was 1888.

That's not a statement of precedent; that's an observation on the scarcity of the phenomenon. The two are not the same. The reason that the Senate hasn't confirmed a nominee in a presidential election year that arose in that year since 1932 isn't because the Senate routinely rejects that type of nomination - which would indeed set a precedent - but because that very narrowly-defined set of circumstances hasn't occurred since Benjamin Cardozo was nominated and confirmed in 1932 (depending on how you count Thornberry in '68; see small print below); that the phenomenon hasn't unambiguously occurred since 1932 doesn't set a precedent for action (or inaction) by the Senate. It all depends on how you manipulate the data. I could equally well write that 'in the 20th century, the Senate has confirmed four out of the five nominees put forward by a president in a presidential election year*', and be just as accurate as your statement, while presenting the precise opposite impression of where precedent lies; I would also be using the word 'precedent' more accurately.

*Harlan nominated by Taft in Feb 2012; Brandeis nominated by Wilson in January 1916; Clarke nominated by Wilson in July 1916; Cardozo nominated by Hoover in February 1932. The exception was Homer Thornberry, nominated by Johnson in June 1968; but he wasn't rejected by the Senate, rather his nomination had to be withdrawn when the attempt to promote Abe Fortas from associate justice to chief justice on the retirement of Earl Warren was withdrawn over ethics issues - not because it was a presidential election year.


The below table, sourced from this link, "shows every name that was put into nomination for a seat on the Supreme Court in the last eighteen months of a president's term, and the outcome of those nominations. It also shows whether that president's lame duck status was official (due to term limits, having already declined renomination, or having already been defeated) or just possible (he was nearing the end of his term, but had the potential to run again)"



Quoting the substantive parts of the discussion that table is sourced from:

The data can be parsed in many different ways, but here are a few salient observations:

* 47 of the 112 justices in Supreme Court history were submitted in the last 18 months of a presidential term.

* Of those 47, 28 were confirmed, six were withdrawn, three declined the offer, two were rejected, and for eight no decision was made.

* Just over half of those 47 were placed into nomination by a president whose lame duck status was official.

* For official lame ducks, it is 11 confirmations, four withdrawals, three declines, one rejection, and five where no decision was made.

* The average length of time for a decision to be made is 37 days; the longest a nominee has languished is 261 days. There are 342 days left in Barack Obama's term.

* Late-term appointments were vastly more common in the 19th century than they are today. In part, this is because justices live and serve longer now, so there is less turnover. And in part it is because the Court's increased importance over time has caused more justices to strategically "time" their resignations and retirements; rarely does a seat come open in the third/fourth year of a president's term unless a justice dies unexpectedly.

The upshot is that there is no "tradition" of lame duck presidents withholding their Supreme Court nominations in order to "give the voters a chance to weigh in." The Court has business to do, the President has a role in making sure that business gets conducted, and no chief executive—including Ronald Reagan—has declined to fulfill their responsibilities because their time in office was short. Grassley, Rubio, and Cruz zoomed in on "80 years," because only two vacancies have occurred in the last 18 months of a president's term during that time (one each for LBJ and Reagan). Two instances does not a "tradition" make, however, and in any event, both of those presidents made a nomination.

There is some precedent for filibustering a nominee (or failing to take action, which was the 19th century equivalent). However, in each case where a nominee lingered for 100 days or more, the issue was not constitutional or legal but instead 100% political. Namely:

* Both John Tyler and Millard Fillmore were Democrats-turned-Whigs who assumed the presidency on the death of the incumbent (William Henry Harrison and Zachary Taylor, respectively). They weren't Whiggish enough for the Whigs and were considered apostates by the Democrats in Congress, so their nominees were punished. In fact, Tyler's failures (he only got one of six nominees approved) gave us the longest vacancy in Supreme Court history, at 27 months.

* Woodrow Wilson's nomination of Louis Brandeis outraged conservatives in Congress, who deemed the justice-to-be "too radical." There was also some amount of anti-Semitism driving opposition to the appointment, though it was eventually approved.

* LBJ's nomination of Abe Fortas to the chief justiceship (and Homer Thornberry to fill the associate seat that would have been vacated by Fortas) is the case that the GOP is currently hitching its wagon to; Cruz specifically mentioned it during the debate. In Fortas' case, Congressional Republicans were angry about the Great Society, Democrats about the Vietnam War, and both sides felt the nominee was too closely connected to the President, so they refused confirmation.

Certainly, it is entirely possible for Obama's nominee to be held up for the rest of his term. More than a dozen of his appointments to lower courts have already waited for a year or more. But the President's opponents cannot rest on "custom" or "tradition" or "precedent" as their reason. Sooner or later, as the president's choice waits longer than any appointee ever has, it will be obvious that the delay is pure politics. And at that point, the question will be whether the calculus adds up for the GOP.

Harlin nominated by Taft in 2012?

[The Archregimancy]

Harlin nominated by Taft in 2012?

<looks shocked>

Honestly, Ethel, I don't know what you can possibly mean.

It quite clearly states '1912' in my post

Nobody noticed the edit...; I know nobody noticed the edit.

[Ethel mermania]

Harlin nominated by Taft in 2012?

<looks shocked>

Honestly, Ethel, I don't know what you can possibly mean.

It quite clearly states '1912' in my post

Nobody noticed the edit...; I know nobody noticed the edit.

Look at the bright side, you learned today that I do read your posts, all of the posts... every last word. God I need a life.

[The Archregimancy]

<looks shocked>

Honestly, Ethel, I don't know what you can possibly mean.

It quite clearly states '1912' in my post

Nobody noticed the edit...; I know nobody noticed the edit.

Look at the bright side, you learned today that I do read your posts, all of the posts... every last word. God I need a life.

Something else we both missed...

It was Pitney who was nominated by Taft in 1912, not Harlan.

Harlan was the justice that Pitney was replacing.

Clearly my copyediting needs some work; I've corrected that now, too.

[The Archregimancy]

One other detail here...

If you look at the table a few posts back, there's at least one case of a Supreme Court justice being nominated and approved by a president after that president had lost one of the most controversial and bitterly contested elections in US history, but before the next president was inaugurated*.

John Marshall was nominated by the outgoing John Adams in January 1801 (in an era when presidential inaugurations were in March), after Adams had been crushed by Jefferson in the previous year's election.

Now, a precedent from January 1801 may not seem immediately binding on the process in 2016, and the Supreme Court is a very different beast now than it was then (in no small part thanks to John Marshall).

But let's consider this from a conservative strict constitutionalist position. Adams, Jefferson, and the various members of Congress involved presumably knew a thing or two about the intent of the framers of the US Constitution. Now, the nomination of Marshall wasn't wholly uncontroversial, but the controversy was over the Midnight Judges Act, not the president's right to appoint a Supreme Court justice - and a Chief Justice at that - even after he had been decisively rejected by the electorate. There was some brief prevarication over whether Adams might choose someone else, but no one disputed his right to make the appointment; Marshall was confirmed a week after his nomination. This despite the fact that the 'people' had roundly rejected the person making the appointment.

Clearly there was no intent on the part of the framers of the Constitution, many of whom were still highly active in politics at this point, that a lame duck president - even a lame duck president who had already lost an election - shouldn't have the right to nominate a candidate to a vacancy in the Supreme Court.

Refusing to even hold hearings on the basis that the 'people' should be given a say in a Supreme Court appointment in an electoral year is therefore a clear violation of the intent of the Constitution's framers.


And for what it's worth, most people presumably consider John Marshall to have been an outstandingly successful appointment.



* though the identity of that successor was yet to be determined due to the flaw in the constitution that allowed for the infamous Electoral College tie between Jefferson and Burr

[Washington Resistance Army]

Maybe he simply takes the "well regulated" part seriously, unlike certain people who pretend those words aren't in the 2nd amendment.

The "well regulated militia" is every male from the ages of 17-45.

Relevant US code.

[Valaran]

From what little I know of Garland, he seems a good choice. Hope he is approved.

[Khadgar]

From what little I know of Garland, he seems a good choice. Hope he is approved.

If the Senate is smart he will be because Hillary will nominate someone who's younger and far more liberal, and Trump would nominate his daughter or someone with no qualifications. Garland is their best case scenario. If they pass it up it's their own fault.

[Valaran]

From what little I know of Garland, he seems a good choice. Hope he is approved.

If the Senate is smart he will be because Hillary will nominate someone who's younger and far more liberal, and Trump would nominate his daughter or someone with no qualifications. Garland is their best case scenario. If they pass it up it's their own fault.

Its certainly their fault if they don't, but I not exactly confident that they will do this.

[The Black Forrest]

Why stop there? They could just give the power to the British Supreme Court and then the EcHR. It would save money and go back to what was.

Too liberal Justice Thomas shall be the sole justice so say The Republican Congress.

You need one more more. Somebody has to ask questions and tell him how to vote.