Is conservative opposition to filling Scalia vacancy like FDR's Court-packing controversy?

In 1937, FDR failed to increase the number of SCOTUS seats after consevatives of his time used courts to block the New Deal. The failure famously blunted bipartisan support for future New Deal reforms.

Will the contemporary conservatives now similarly overreach by trying to block a SCOTUS appointment to follow J. Scalia?

… “The American people should have a voice in the selection of their next Supreme Court justice,” Senator Mitch McConnell of Kentucky, the Republican majority leader, said in a statement. “Therefore, this vacancy should not be filled until we have a new president.” …

Right? Or is it …

…“It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” said Senator Harry Reid of Nevada, the Democratic minority leader.

“Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.” …

The GOP hold both Congressional houses and may be able to stall an appointment. Will that be a popular choice in an election year?


Seriously, fuck those guys.


Yes, and aren’t they freaked to lose their Justice Warren from the antimatter universe?

I’m asking partly whether it’s not good political news that the GOP seems ready to devote the next 10 1/2 mos. to transparently and compulsively and obviously working to subvert the plain language of the law?

Am I wong? :smiley_cat:


Well, it’s not lawful when black people do it… duh! /s

Yeah, the next month or say trying to get a new justice is not going to be pretty. They are going to tear down the fabric of the system itself in order to get their way and at the end of the day, there is nothing indicating that the GOP has any advantage, politically in November. None.


I find this stuff fascinating. And terrifying.

Refusing to do your damn job is ridiculous.

They’re just digging a hole for themselves. See the GOP debate. They’re ripping their own party apart and destroying their long term electability.

Here’s a good article on potential nominees.

I assume we might see others if Breyer and RBG retire following a Dem victory.

I really would like to see President Sanders appoint Lessig to SCOTUS.


That’s the part that recalls FDR’s efforts to pass the Judicial Procedures Reform Bill of 1937.

Hindsight is 20/20. If FDR had waited, wouldn’t he still have gotten to appoint most of the justices with less strain and shredding of his coalition?

Now the GOP seems ready to take a similar risk as FDR.

The best candidate politically would probably be Hispanic. Hispanic voters both (a) are more politically independent than black voters and therefore more in play in the election, and (b) historically vote in low numbers.

And per the argument in the Slate article @jerwin linked:

…the Republicans’ political strategy here is extremely risky. It makes some sense at first blush—better to roll the dice that a President Rubio or Bush will get to appoint Scalia’s successor—but completely falls apart upon further analysis…

It’s probably a big error for them to make their congressional toddler tantrum even more visible.

Yes, please! From your cyber-mouth to Sanders’s cyber-ears.

Goodbye Heller, goodbye Citizens United, goodbye McCutcheon and Hobby Lobby and maybe even the death penalty itself.

Already, Republican Sen. Lindsey Graham has begun to speak favorably about the possibility of a “consensus” candidate passing the Senate.


But they’ve done that for nearly two full presidential terms already. As promised. This is business as usual for them.


Perhaps I’m wrong about this, but it’s my understanding that no appointment to the Supreme Court has ever failed confirmation in American history. [Edit: NOPE!]Even GWB’s Harriet Miers nomination was quietly dismantled before it could face a Senate test. If Obama becomes an exception in this regard, it really shows the level of opposition he’s been working with.

But, I’m pretty confident he’ll get a confirmation.


If my family is anything to go by most GOP voters will just blame Obama and move on.


That’s true. Is there a limit, like FDR and the New Deal Coalition hit in 1937?

The GOP already struggles more each election to unify around national candidates. Their fringe positions on race and gender have moved to the center of their platform.

In California, the GOP can’t elect a dogcatcher since they opposed public benefits for undocumented families. And now the national GOP has made persecuting undocumented families it’s central mission.

What’s the limit?

Touche — except I’m also curious. Do the conservatives you know seem able to agree on their national candidate.

I’ve noticed the consevatives I know mirror the confusion in the national party about national candidates.

They oppose everthing, are angry at everyone. But conservatives used to unify tightly around national candidates, even someone like Bush senior.

No more. They’re all over the place and disagreeing with each other about their national candidates.

If you want to quiet one down, ask which national GOP candidate is best … the “real” conservative.

No matter who they name, it’s someone the others have attacked aggressively.

That’s new.


The GOP is already being called out for its extremism and dishonesty on the NY Times editorial page:

…The latest Republican talking point is that for 80 years it has been “standard practice” not to confirm any Supreme Court nominee in an election year.

Besides being untrue — Justice Anthony Kennedy was confirmed by a Democratic Senate in 1988 — the claim actually insults Justice Scalia, whose originalist, text-based approach to the Constitution would surely have found room for one of a president’s explicit constitutional obligations.

Senators are free to vote yes or no on any nominee. But not to vote at all is an enormous insult and grave disservice to millions of Americans awaiting justice.

[Emphasis added]


There’s already chatter about Obama nominating a centre-right white male judge to try and placate the Republicans.

This would be unbelievably stupid. The Republicans are going to go apeshit no matter who he nominates. If they’re going to call your nominee a revolutionary communist no matter what you do, you may as well have a real one.

Who would be the current best Islamic female jurist in the USA? Given the mood of the Trumpistas, minority religious rights are going to need protection in the coming years.


John Oliver had a good piece on this tonight.

I do think that the GOP might end up accepting a moderate appointee because if they wait until after the election, it’s likely they’ll get a properly liberal one. Add a couple more retirements and the court is very liberal for a generation.


Sen. Sanders said today, “The Republicans are going to look very, very stupid before the American people when they disrespect the Constitution,” Mr. Sanders said in an interview Sunday. “These are the people who claim they love the Constitution of the United States.”


True though it’s not just the GOP this time around. There’s some value to convincing voters that the refusal is completely unreasonable.

Justice Srikanth Srinivasan on the U.S. Court of Appeals for the DC Circuit was confirmed by the Senate 97 to 0 in 2013.

He’d be tough to refuse now without alienating voters in Ohio and Florida.

That’s another reason. I think so too.


That sort of “shame the Republicans into accepting a moderate conservative” strategy relies upon the Republicans demonstrating rational behaviour.

What about the past eight years led you to think that was a good bet?

What is the strategy if Obama nominates a centre-right judge but the Republicans still block him? Do you think that rational appeals to constitutional tradition will sway Trump and Cruz voters during an election year?

Keep in mind that the bulk of the Republican House is so heavily gerrymandered that they view their only electoral threats as coming from the right.

You end up fighting just as hard for a pre-compromised outcome. See: Obamacare, etc etc etc


You’re right that wouldn’t work. Remember it’s an election year though. The pitch is to voters in swing states like Ohio and Florida, not the GOP.

To me, a Supreme Court Justice seems like a high price to pay for a possible minor electoral advantage.

The Republican base nutters won’t listen to it, and it isn’t the sort of thing that is going to drive a lot of non-voters to the polls; it plays into the all-politicians-suck-so-why-bother narrative.

It’s classic Clintonite triangulation; focus on making the opposition look bad instead of trying to present an attractive alternative. Doesn’t work for Bernie, ain’t working that well for Hillary these days either.


It will be interesting to see who he nominates. As a lawyer and well aware of the aging of several of the judges, he has been working behind the scenes for years to prepare for this.

The correct strategy is not to give them someone who will be cannon fodder, but another super intellectual who will outwit them deftly at every turn. You don’t send a hyena to do a weasel’s work.