Ted Cruz: ‘Make the 2016 election a referendum on the Supreme Court’

[Maren]

THIS IS A MAJOR CHANGE

Any 5-4 ruling in favor of the conservative majority can no longer happen for the foreseeable future.

At very best, the Republicans must filibuster for over a year, and then get an moderate or two on the bench under a Republican president. Even this possibility is unlikely if they filibuster now.

The Republican hope is to work with Democrats on the next 3 nominations, 1 now, and 2 under the next president. Then, the Republicans have a chance of keeping a majority on the bench.

I don't understand this at all. All this will do is tip it to a 5-4 Democrat advantage -- something we haven't had for a few decades. The next 3 that are likely to "leave" the court are 2 Democrats and 1 Republican -- all are older than 77. There is a good chance the next president nominates 3 new justices, not counting Scalia's empty seat. So, if an Obama appointee is not approved and it is pushed to the next president, we could be looking at a very conservative court that has a 7-2 Republican split. Even if Obama makes this appointment, you are still potentially looking at a 6-3 Republican advantage if a Republican wins the White House.

 

[NightHawkeye]

I don't understand this at all. All this will do is tip it to a 5-4 Democrat advantage -- something we haven't had for a few decades. The next 3 that are likely to "leave" the court are 2 Democrats and 1 Republican -- all are older than 77. There is a good chance the next president nominates 3 new justices, not counting Scalia's empty seat. So, if an Obama appointee is not approved and it is pushed to the next president, we could be looking at a very conservative court that has a 7-2 Republican split. Even if Obama makes this appointment, you are still potentially looking at a 6-3 Republican advantage if a Republican wins the White House.

Hmm ... some people seem to look at every thing in terms of "us" versus "them". Why would that be, Maren?

 

[Maren]

Hmm ... some people seem to look at every thing in terms of "us" versus "them". Why would that be, Maren?

Because we have a very polarized country right now.

 

[mark46]

I don't understand this at all. All this will do is tip it to a 5-4 Democrat advantage -- something we haven't had for a few decades. The next 3 that are likely to "leave" the court are 2 Democrats and 1 Republican -- all are older than 77. There is a good chance the next president nominates 3 new justices, not counting Scalia's empty seat. So, if an Obama appointee is not approved and it is pushed to the next president, we could be looking at a very conservative court that has a 7-2 Republican split. Even if Obama makes this appointment, you are still potentially looking at a 6-3 Republican advantage if a Republican wins the White House.

You can choose to believe that there will be 4 changes (including this one) in the next four years and that the Republicans will secure two conservatives (one as conservative as Scalia). That is what it would take to remain where we were before Scalia died.

Much depends on Republican Senate action in the next 12 months.

 

[Albion]

Of course, Justice Kennedy was nominated during an election campaign (November 1987) and confirmed in an election year...

...after the opposition party had prevented two previous nominees from being confirmed.

If that's what you would feel okay with in this situation, it probably would use up all the time between now and the November general election, thus making the whole thing moot.

And, there's also this...

It was not known whether Judge Kennedy would turn out to be aligned with the conservative or with the liberal faction of the Supreme Court. So if President Obama were to put up a moderate of this kind, he might have a chance of confirmation. There's little reason to think he's planning on doing such a thing, though.

 

[Maren]

You can choose to believe that there will be 4 changes (including this one) in the next four years and that the Republicans will secure two conservatives (one as conservative as Scalia). That is what it would take to remain where we were before Scalia died.

Much depends on Republican Senate action in the next 12 months.

I don't understand your math, nor why you think there should be a perpetual Republican majority on the Supreme Court? With Scalia there was a 5-4 Republican advantage -- though Kennedy is a moderate so would vote, on some issues, with the Democrats. If Obama nominates a justice (and to get approved it will have to be a moderate), then there will be a 5-4 advantage to justices nominated by Democrats.

If just one justice dies in the next four years with a Republican president, chances are it will be a Democrat-appointed justice, making it a 5-4 court with the Republican appointed justices again being a majority.

Your math just does not add up.

 

[DLR]

Apologies if it has already been mentioned. Does anyone think there is even a remote chance Obama will nominate a moderate justice that doesn't have a rep for legislating from the bench?

If not, guess I'll stock up on filibuster popcorn.

 

[NightHawkeye]

Because we have a very polarized country right now.

I'm not looking at it as us versus them, Maren. I'm simply looking at it in constitutional terms. Are the justices on the supreme court upholding the constitution ... or are they instead favoring some political ideology.

If Obama chooses to nominate a justice who has a history of upholding constitutional law, then I'll be the first to support his/her appointment to the bench. I would expect most who oppose Obama's agenda to act similarly ... and be more than willing to support Obama's nominee. I don't believe it's personal in the least.

 

[Maren]

...after the opposition party had prevented two previous nominees from being confirmed.

If that's what you would feel okay with in this situation, it probably would use up all the time between now and the November general election, thus making the whole thing moot.

And, there's also this...

It was not known whether Judge Kennedy would turn out to be aligned with the conservative or with the liberal faction of the Supreme Court. So if President Obama were to put up a moderate of this kind, he might have a chance of confirmation. There's little reason to think he's planning on doing such a thing, though.

Just to note, it took less than 8 months from the previous justice leaving and Kennedy being confirmed. That still puts us about a month prior to the election.

 

[Maren]

Apologies if it has already been mentioned. Does anyone think there is even a remote chance Obama will nominate a moderate justice that doesn't have a rep for legislating from the bench?

If not, guess I'll stock up on filibuster popcorn.

I fully expect Obama to nominate a moderate, one that many (more moderate) Republicans likely even approve of. He'll do it because he will know it is his only chance of getting a nominee confirmed.

 

[Albion]

Apologies if it has already been mentioned. Does anyone think there is even a remote chance Obama will nominate a moderate justice that doesn't have a rep for legislating from the bench?

If not, guess I'll stock up on filibuster popcorn.

No. None. However, I think there's a good chance that, as with his recent nominee for Attorney General, he might nominate someone who can be called a moderate thanks to a few facts from his past that divert attention from an otherwise liberal resume.

 

[Maren]

I'm not looking at it as us versus them, Maren. I'm simply looking at it in constitutional terms. Are the justices on the supreme court upholding the constitution ... or are they instead favoring some political ideology.

If Obama chooses to nominate a justice who has a history of upholding constitutional law, then I'll be the first to support his/her appointment to the bench. I would expect most who oppose Obama's agenda to act similarly ... and be more than willing to support Obama's nominee. I don't believe it's personal in the least.

Of course, the question is, what is "in constitutional terms." All the justices believe in upholding the Constitution; the split is in their judicial philosophies and in how the Constitution should be interpreted.

Regardless, I realized the better answer to your question, "Hmm ... some people seem to look at every thing in terms of "us" versus "them". Why would that be, Maren?" would be: Because the Republican leaders and Presidential candidates seem bent on making it that issue. They seem to believe they should be able to make the nomination (assuming they are voted into office) and not the current President.

 

[Albion]

Just to note, it took less than 8 months from the previous justice leaving and Kennedy being confirmed. That still puts us about a month prior to the election.

Well, let's be very realistic. If it comes that close to the election, it would be hard to argue that there's a compelling reason to rush the nomination through.

However, if Obama puts up two nominees in succession who don't get confirmed and then nominates a third, we should talk about this again.

 

[Albion]

They seem to believe they should be able to make the nomination (assuming they are voted into office) and not the current President.

No, that's not fair to say. The Senate has a Constitutional obligation to confirm or reject the nominee of the President. This is just normal operating procedure and does not deserve to be characterized as somehow unusual or shady. What the President does could be that, but the act of the Senate in holding hearings and finally voting is nothing out of the ordinary.

 

[Maren]

No, that's not fair to say. The Senate has a Constitutional obligation to confirm or reject the nominee of the President. This is just normal operating procedure and does not deserve to be characterized as somehow unusual or shady. What the President does could be that, but the act of the Senate in holding hearings and finally voting is nothing out of the ordinary.

Except the Majority Leader of the Senate, the one that controls the agenda of what happens in the Senate, says they will not even consider any nomination made by this President. That is not normal operating procedure.

I'll agree, if Obama nominates a liberal and Republicans object and refuse to confirm him, that would be normal, though still could be considered shady (just like Republicans claim rejecting Bork was shady).

 

[NightHawkeye]

Of course, the question is, what is "in constitutional terms." All the justices believe in upholding the Constitution; the split is in their judicial philosophies and in how the Constitution should be interpreted.

Incorrect.

Some on the court now fervently believe that the constitution is a living, breathing document to be changed at the discretion of the court. That philosophy is and has always been unconstitutional. The Supreme Court's job was never defined as reinterpreting the constitution to suit the pleasure of those in power.

Regardless, I realized the better answer to your question, "Hmm ... some people seem to look at every thing in terms of "us" versus "them". Why would that be, Maren?" would be: Because the Republican leaders and Presidential candidates seem bent on making it that issue. They seem to believe they should be able to make the nomination (assuming they are voted into office) and not the current President.

Incorrect, again. It will depend entirely upon whether Obama chooses to appoint a justice committed to upholding constitutional law. If Obama does that, then there will be no issue. If Obama chooses otherwise, as many seem to expect, then the Senate will likely fulfill its constitutional obligation to the President by telling him to "go fish" for another prospective nominee. At that point the president will have received good advice.

 

[DLR]

No. None. However, I think there's a good chance that, as with his recent nominee for Attorney General, he might nominate someone who can be called a moderate thanks to a few facts from his past that divert attention from an otherwise liberal resume.

I don't think so either. The no previous record appointment won't work again. I think anything but a long and clear record will meet filibuster. This is arguably more important than the outcome of the election.

 

[Albion]

Except the Majority Leader of the Senate, the one that controls the agenda of what happens in the Senate, says they will not even consider any nomination made by this President. That is not normal operating procedure.

It's not uncommon, although Majority Leaders usually don't say it that bluntly. I take it that he was trying to dissuade the President from trying any funny business like he's done with some other matters.

In any case, this doesn't amount to the Republicans thinking they should make the nomination--which is what you had alleged.

I'll agree, if Obama nominates a liberal and Republicans object and refuse to confirm him, that would be normal, though still could be considered shady (just like Republicans claim rejecting Bork was shady).

I guess it depends on a definition of "shady."

 

[Goonie]

I fully expect Obama to nominate a moderate, one that many (more moderate) Republicans likely even approve of. He'll do it because he will know it is his only chance of getting a nominee confirmed.

Agreed, I suspect obama will nominate a moderate, or even someone with reoublican views so as challenge the Senate to obstruct. The idea that the US president cannot make policy, appoint a justice etc in the last year of his term is absurd. If that was the case then the presidential term should be reduced to 3 years, and since the last year will be pointless 2 years, then...

 

[Albion]

Agreed, I suspect obama will nominate a moderate, or even someone with reoublican views so as challenge the Senate to obstruct. The idea that the US president cannot make policy, appoint a justice etc in the last year of his term is absurd. If that was the case then the presidential term should be reduced to 3 years, and since the last year will be pointless 2 years, then...

That would be possibly the smartest move, but nothing in his past record of appointments suggests that he'll do anything like this.