Discussion: Could A GOP Senate Blockade The Supreme Court Under Obama?

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Discussion for article #221187

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I hadn’t considered that possibility and will make it a motivation to somehow get involved in a Senate campaign to help prevent it.

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In the situation with a Republican Senate, they would without question run out the clock on President Obama appointing a SC Justice for any vacancies that open up with say a year or less on the term of the Senate. Any longer vacancy than that is really problematic. That would leave the President with some interesting choices:

  1. Nominate a universally respected republican jurist to serve with the agreement that they will retire at the end of his administration and allow the next President to replace him. This might be someone like Ted Olson or Douglas Ginsburg, formerly of the DC Circut. Both are sterling choices. Olson has come before the court on dozens of ocasions, including Bush v Gore, the Prop 8 case out of California and as US Solicitor General under GW Bush. Ginsburg was nominated by Reagan for the Court, but was withdrawn after it turned out he was a pothead in his early adulthood. He was on the DC Circut for years and was widely considered a genius by both sides of the political spectrum.
  2. Bring back a senior SCOUS Justice, such as Justice O’Connor. Technically, they’re still judges, and a case could be made that they do not need to be reconfirmed. Justice O’Connor and Justice Bryer have both heard cases at the appeals court level or at the district court level since going to senoir status. With the agreement of the Chief Justice, they could probably be reseated on a temporary basis. It so happens that all 3 senior justices, JP Stevens, Breyer and O’Connor were appointed by Republican Presidents. Frankly, I could live with a few more years of Sandra Day O’Connor on the bench, if push comes to shove. CJ Roberts is really cognizent of the reputation of the court, stupid corporate personhood rulings notwithstanding, and I don’t know that he would be happy having a vacancy for a couple of years. It’s even more interesting to think what might happen if there are -multiple- vacancies. Would he be willing to let the court be down 2 or 3 justices for a year?
  3. Recess appoint a SCOTUS Justice. This would be a nuclear option to end all nuclear options. It has precendent on the lower court level, so there’s no real reason it would be illegal at this level either. If this happens, expect a constitutional crisis, so I really don’t see it, but it is, probably, a technical option.
  4. Capitulate and name Janice Rodgers Brown. Why not go all the way to ridiculous. She’s about the worst choice out there, but she is on the DC circut. Make them appoint someone and hope they grow in the role. I see this one only sligthly less likely that number 3, but giving the Senate a big hunk of red meat and daring them to vote her down.
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In a new york minute. They’ll do it even if they don’t win the senate. As long as they have enough votes to filibuster.

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I love the idea of bringing back Justice O’Connor, especially if she could be traded for Roberts. But seriously, unless Obama were to nominate a conservative, I don’t see any chance that a GOP senate would confirm anyone.