Courting Disaster

In shocking news, Supreme Court Justice Antonin Scalia has passed away. This week's post is all about how to replace a Supreme Court Justice. It's a little longer than usual.

My favorite story has been the friendship Scalia had with his judicial colleague, Justice Ruth Bader Ginsburg. The two used to vacation together, and (while her husband was alive) would share New Year's Eve together. On the court, the two could not be any more perfect foils: One a brash, outspoken conservative and the other a frail-looking, diminutive liberal. I also liked the story that Scalia recommended Elana Kagan to President Obama, saying that he didn't have any illusions that Obama would select a conservative, but if he's going to pick a liberal judge, the pick should at least be someone smart. What a sentiment: If we're going to do battle, let's at least have a good fight.

Take Your Chances

Hours after Scalia's death, Senate Majority Leader Mitch McConnell announced plans to delay a confirmation of Scalia's replacement until after the election. He said the people need to have their say. GOP Presidential candidate Ted Cruz has announced he would filibuster any nominee, no matter who it is.

McConnell and Cruz are both gambling. They're hoping that if they delay long enough, the GOP might win the Presidency and hold on to its Senate majority.

Best-case scenario for them, the Supreme Court keeps four conservatives, four liberals and a swing voter (Kennedy). But looking at electoral college numbers and the number of GOP Senate seats up for election this year, the odds are just as good of the worst-case scenario: Hillary wins election, and Democrats take over or close the gap in the Senate. In that case, she'd probably select an even more liberal nominee. That's more likely if it's the polarizing Trump or Cruz who win the GOP nomination (I believe those two would have a difficult time in the general election).

Lastly, McConnell et al are also gambling that their move won't backfire. That is, that Americans will be upset by their blatant obstructionism and say "enough." Seeing the GOP leadership refuse to even hear a nominee is off-putting in an election year. And there is an election coming up soon...

Precedent for the President

The short version is there is no precedent for an 11-month delay to fill a Supreme Court vacancy. There's not any recent precedent for filling one — it's a situation that frankly hasn't come up much.

On Tuesday morning, I heard an NPR interview with Sen. Orrin Hatch, R-Utah, saying that Obama and the Senate Democrats should expect this type of delay since they did it to Robert Bork in 1987. First: Obama was not in the Senate. Neither were most of the current Democratic senators. In fact, only nine senators remain in office since 1987: six Republicans and three Democrats. That includes Hatch, McConnell, John McCain, Judiciary Committee Chairman Chuck Grassley (all GOP), and Senate Minority Leader Harry Reid (Dem). You should not hold people responsible for moves they did not make.

Second, there are major differences between Bork and the current situation. 1) Bork actually had a hearing in the Senate. 2) The Senate did vote on Bork. They rejected him on ideological grounds, but at least had a vote. 3) Anthony Kennedy, Reagan's third choice, was confirmed 97-0 by a Democratic Senate (!). 4) Kennedy was nominated in November and confirmed in February — three or four months. A Democratic Senate overwhelmingly confirmed a Republican nominee, but it took some give-and-take.

The only other pre-WWII example came in June 1968, when Chief Justice Earl Warren offered to resign "at the President's leisure." Note: four months later than our present issue. LBJ picked a sitting Justice, Abe Fortas, to move up to Chief, but ethical issues for Fortas popped up during confirmation that caused the Senate to look unlikely to approve Fortas' promotion, and LBJ pulled the pick. He didn't bother making a new one.

Thurmond rule

Finally, the "Thurmond rule" came out of the Fortas fight. You'll hear politicians reference this, but it's a bastardization of a terrible person's ideas to say that's a rule worth keeping. Thurmond was a notable racist, running for President in 1948 on a platform of segregation and fighting the Civil Rights Act tooth and nail. Further, the "Thurmond rule" was that no lifetime appointment should be considered in the last six months of a lame-duck president's term. That's cool if you want to stick with a segregationist's stupid rule, but Obama has 11 months left. The rule doesn't even apply.

The Replacements

I've read a lot of good stories on who Obama could/should nominate. Let's leave aside the idea that the Senate will not hear the nomination. I expect the nominee to be a minority.

Paul Watford, Sri Srinavasan and Loretta Lynch are probably your leading candidates. Here are your quick bios: Watford is a 49-year-old black judge of the Ninth Circuit. He is considered a moderate and was confirmed 61-34 in 2012. Srinavasan (grew up in Kansas!) is a 48-year-old Indian-American judge on the DC Circuit Court who was confirmed 97-0 in 2013. He's also considered more moderate. Finally, current Attorney General Loretta Lynch, 56, is a black female (double minority). She's a former prosecutor who was recently confirmed 56-43 by the Senate. Watford and Srinivasan's confirmations were filibuster-proof. Lynch's was not. However, she's a well-qualified woman, and if the GOP is perceived to "gang up on her," that could galvanize both the black vote and the female vote in favor of the Democrats in this fall's election.

Summary Judgments

Well-written article by Howard Kurtz at Fox News. I swear I wrote much of the above before I read that.  •  •  •  I loved seeing the Alabama Shakes win a Grammy for Best Rock Performance on Monday. Alyson and I saw them live for my birthday three years ago, and they were awesome.  •  •  • Roland's got another ear infection, so we've finally hit the magic number! He can get tubes in his ears now! I shouldn't be so excited about that, but I kind of am.