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Will Another Alito Ever Be Confirmed?
After the Supreme Court’s latest term, a line has been drawn in the sand so clearly that even a RINO can see it without glasses.
The Obergefell decision is fairly fragile. Justice Kennedy might resign during the next president’s term, and a Republican president might appoint his replacement. But if the current balance of the court is in danger of being pushed rightward*, the Democrats will do anything to stop it. They will use the filibuster and leave the seat unoccupied, for years if necessary.
In this scenario, our best hope is that the GOP holds firm and refuses to accept another moderate like Kennedy. As long as Republicans has a majority in the Senate, they should use all available countermeasures against the filibuster, blocking bills and even holding payment of federal employees as ransom.
We need to make leftist judges at all levels toxic. Remember: we don’t need the courts the way the left does. A denuded or discredited court for us would be unfortunate, but for the left it would be an apocalypse.
Alito was the last reliably conservative justice confirmed. I am pessimistic we will ever see his like again. The GOP establishment finds a liberal court very convenient and may join with the left to stab us in the back.
* Interestingly, Ginsburg shows no interest in resigning during Obama’s presidency and she is 82. Fellow member James of England told me an interesting theory: he believes Ginsburg has a legal mind vastly superior to either Kagan’s or Sotomayor’s, and could not bear to see her seat taken by another of Obama’s hacks. Perhaps she’s counting on Hillary winning in 2016.
Published in Law
Nuclear option for judicial nominees. Make them stand on the floor of the senate and filibuster, not some procedural trick either. It will happen, and we won’t feel bad about it.
We should pack the hell out of the court next go round.
I can dream can’t I?
This is such an important thing to talk about, and to work on. Is there anything more important in the realm of the political?
And what does the little old Ricochettus do about it? I guess he can email his senators, vote Republican in the general and hardcore conservative in the primaries, and say something on Facebook about how Originalism is not inherently evil or irrational. Maybe it would help if we all did that.
Hasn’t Obama already packed the courts? There might not be much left over to fill.
Depends on who he would be replacing. The liberals will not freak out over Scalia or Thomas being replaced by solid conservatives, as it doesn’t change the balance of the court.
Kennedy however…they will burn the whole place down before they allow him to be replaced by a conservative.
I don’t think the liberals would be OK with us replacing Scalia with a Scalia any more than they would be with us replacing Ginsburg with a Scalia. They might pretend as much, saying “oh you should just get someone a little better, blah blah, we’re still gonna filibuster…” but never really intend to confirm a nominee. Or they’d pull something like they did over Thomas, and drag him through the mud out of spite.
But I would like to know why you are convinced they have equanimity about the Supreme Court’s balance.
Zzzzzzactly!
This is a fight we need to fight to the death. I’m usually understanding of the need to comprimise when it comes to legislation, but confirming judges is at the root of conservative failure. Bork should have been confirmed and we wouldn’t have needed Kennedy.
When it comes to the high court, the one thing I cannot understand is how the Liberals are all in lock step. They never split.
The problem here is that it is not always easy to ferret out who is a truly “conservative” judge. There are some obvious bad ones, but the goods ones tend not to stand out, plus there is an enormous pressure on judges to move leftward once they are on the bench. A number of justices have started out of fairly sound mind, but, enamored of the power of the position, “expand” their views the longer they stay on the job.
Pack the courts in this sense means add more justices. But there are other courts to pack, not merely the Supreme. Key circuit courts, like 9th, DC, and the like can be packed in a much less high profile way.
Packing the Supreme Court would make a better threat than a promise I think. But I hope the Republicans, with (hopefully) yet another instance of full control of Executive and Legislature, take the opportunity to shore up some key circuit courts, even if it means simply adding justices, or strong-arming some into retirement.
Dems have been packing circuit courts for years. Reid killed the filibuster rule for those nominees, and turnabout is fair play. They don’t seem particularly interested in the rules for their own sake, so I don’t see why we should bother playing “fair” anymore.
Has Obama gotten any judges confirmed since R’s took over the Senate?
Here’s the full list.
This is interesting because her closest personal friend on the Court is Scalia.
Oh c’mon. The Senate Republicans have learned their lesson. They’ll fight hard going forward.
HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA!
Sorry. Just couldn’t keep a straight face.
That isn’t what I said. On the big issues they have a 5-4 majority. If that is in jeopardy, they will fight to the death.
Mutually assured destruction applies here. They won’t filibuster Scalia’s replacement because they can’t afford to have their choices filibustered, and on net, they lose nothing by a solid conservative being appointed there.
Kennedy’s replacement will cause a constitutional crisis.
Ah, gotcha. It’s not about balance as such, but the current balance being favorable to them on their biggies.
So no matter what we’ll have some fierce brawls because we have a some significant vacancies coming down the pipe in the next term for the Supremes. Breyer, Kennedy, Ginsburg, and Scalia all may be ready to retire in the next term, so 2 libs, one con, and one wildcard.
Exciting times ahead.
On that note, http://www.nationalreview.com/article/420417/supreme-court-john-roberts-marriage-health-care-constitution.
No it won’t. The Democrats have already shown that filibusters can be done away with by a simple majority vote. The Republicans just use the nuclear option on SCOTUS nominees. The Democrats can hardly complain. They used the nuke first.
Even appointing known conservatives doesn’t guarantee anything. Conservative appointees have a confirmed habit of “growing in office” that is, becoming more and more liberal as time goes on, while liberals just get more liberal.
In very large measure, it depends on what the President pushes for — and how influential he is at the moment.
So what do the candidates think of the filibuster? Bush and Walker have both said they are quite willing to kick it aside to get rid of Obamacare. Rubio opposes that, though what he’d actually do as President I don’t know.
Would Bush be aggressive enough to push that step to get his nominee through? Don’t know. (Also don’t know whether his nominee would be worth it.)
I think Walker would. Can’t prove it, but I think he would have the nerve and would want his way badly enough. He picks his battles (and there would be some conservatives would want him to fight that he wouldn’t pick), but this would be one he would pick, and he’d go all the way.
I have no desire to have that question asked in a debate, though. We can predict enough about their overall disposition and judgment without making them play their hand prematurely.
All it takes is a courageous GOP Senate. Without that, we will be lucky even to get another Kennedy on the bench.
This is absolutely correct and a top priority if a Republican is elected President and the Republicans retain control of the Senate in 2016. You can be assured that if the opposite occurs the filibuster will be gone again so we might as well do it.
When the Dems got rid of the filibuster and expanded the DC Circuit and got their judges on it they ensured long-term domination of the most important appeals court in the U.S., the one that hears most litigation over regulations.
And this is about more than Originalism. The weakness of justices like Scalia is that they are too accepting of the precedents going back to the New Deal. Thomas is the only current justice occasionally willing to go back to first principles in the Constitution. And forget about judicial restraint. To undo the legal morass we’ve gotten ourselves into will require some radical action.
An interesting side note is that Alito himself shifted the balance of power in the Supreme Court quite dramatically.
Alito was nominated to replace Sandra Day O’Connor (another Republican nominee-turned-squishy-moderate) to provide long-term care for her sick husband (who then died shortly thereafter). Imagine what the judicial landscape would look like if O’Connor’s husband had died even more quickly and Alito had never been nominated?
If Kennedy were to retire during on a Republican president’s watch, I wonder if liberals would bring up this history to make the case for not replacing another centrist with a conservative.
This is true. It’s worth remembering that we at least broke even with Bush, and that’s incredibly important. Roberts may be dangerously wrong sometimes and Kennedy may be right less than half the time, but a lot of liberty depends on those decisions.
Say what you will about Ginsburg, but in my opinion she is formidable. I thought her Obamacare opinion was tightly reasoned though of course I disagreed with it. I have also read that she concedes that Roe v Wade was poorly reasoned. do wonder what she thinks of Kagan and especially Sotomayor.
It may not always be easy to tell if a judge will be conservative, but there is one sure way to tell that he won’t. The one thing conservatives will always be able to count on is that they will never be able to count on any Bush nominee.
Alito was a fluke.
At some point and time, conservatives are going to have to realize that every argument they have ever made regarding Supreme Court justices and “balance of power” has already been made, and found very much wanting.
Which means conservatives may want to focus more on legal strategies that get the judicial decisions they want made. Look to DC v Heller (despite the NRA’s original reticence to join the legal strategy) and Citizens United v FEC as roadmaps.
Heck, Horne v Dept. of Agriculture may end up being known in history as the crowbar that tears down the labrynthian federal apparatus surrounding agribusiness. Yet conservatives are too focused on the abortion and SSM big shiny things to really pay attention.
This is a very interesting idea. It reminds me of the kind of tactics Charles Murray is suggesting–but I really don’t know what you mean. Can you fill in the details? Could your idea be applied generally?
In terms of big ideological cases, I’m having trouble remembering an instance where Roberts voted against conservatives besides the two ObamaCare decisions. Other than that he’s been very solid.
As for Kennedy, I think he’s both better and worse than you describe. On the plus side, consider his votes in Heller, MacDonald, Hobby Lobby, and Citizens United; all of those were close votes and Kennedy was on the right side in all of them. Consider further how mad our leftist friends are about all of them. On the other hand, when Kennedy is wrong — as he was in Obergefell — he’s often spectacularly wrong.
Alito was an accident. Bush 43 really wanted Harriet Miers.
The Bushes did give us Alito and Thomas, two reliable conservatives. Reagan gave us Kennedy and O’Connor. Go figure. I think it is very tough to predict how these things will turn out. The biggest shocker was how Souter turned out. Bet Bush 41 regretted that one.