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Month: November 2016

Advice & Consent 19: Transition turmoil + SCOTUS

It’s transition season now that the election is over and a few questions remain for the Garland nomination… notably, has the Senate waived its advice and consent role? And how will the new roster of the Senate Judiciary Committee impact this vacancy and other business before it in the next Congress? Lots to unpack before we head over the hills and through the woods for a holiday break!

Has the Senate waived its advice & consent “rights” allowing Merrick Garland to take a seat SCOTUS?

Could President Obama really appoint his Supreme Court nominee? (WaPo video)

No direct precedent

Probable Constitutional crisisTM after Jan 20th

President Obama unlikely to be into this option

Even if he wasn’t, probably too late (should have happened this summer)

Adam:  The question Democrats/liberal activists have to confront is:  As the party/ideology that believes that government can help society, how much do they try to explode the institutions of government with the goal, ironically, of protecting those institutions from Trump (we had to bomb the village to save it) vs. how much do they normalize Trump by trying to protect the institutions of government by not blowing them up.

For example, the Senate rules allow Democrats to basically force the Senate to do nothing.  The Dems could filibuster the organizing resolution laying out the new committee chairs and members for the new Congress; unlike almost any other motion, they can move to adjourn the Senate no matter what the pending business is (and, if they time the motion right, win it, or at least force Rs to be in DC whenever the Senate is in session–normally, many senators are out of town between Thursday midday and Tuesday midday even if the Senate is in session); they can force every bill to be read; they can force every vote to occur twice using the motion to reconsider; they can file cloture motions on any bill pending on the floor that take precedence over much other Senate business; they can use these dilatory tactics to shut down the government.

To tie this back into the subject of the podcast, they can refuse to consent to floor votes on any nomination, from who becomes a commander in the Coast Guard to who becomes a Supreme Court justice. This would require the Senate to change the rules on Supreme Court justices to allow them to overcome a filibuster with a simple majority vote, and for the other nominees–where cloture already takes a simple majority–it would require all nominees to have to be debated for 30 hours before being confirmed (if Dems don’t give their consent to time running during a recess).

These are serious steps. None would have the result of stopping a determined Republican majority. It would only have the effect of slowing down Republicans, infuriating them, and making it clear that Democrats do not see Trump as a politician that they can play ball with.

It would also go a long way to destroying the Senate as an institution. Do Democrats want to do that? Do they want to provoke constitutional crisis? Or are they willing to risk normalizing Trump by not fighting tooth and nail?  I would guess the answer to that last question is “yes,” although that will go a long way to reelecting Trump in 2020 (unless a recession intervenes).

Tim:

If Democrats let this go without some kind of response, it’s s like thanking the schoolyard bully after the daily lunch money shakedown. But this is a burn the house down strategy that would (a) not work, and (b) cause damage to institutions the Dems care about. So, ¯_(ツ)_/¯

Lena: While I think it’s fascinating, this isn’t the kind of move that’s going to be 1) successful or 2) helpful in protecting the institutions we care about. Respect the institutions, and checks on it. There are certainly those who have tried every way possible to get the Senate to do something, and I’d like to think that the words the President shall appoint has meaning. But the clause before “appoint” about “advice and consent” is something that has to happen – I do think it’s an affirmative duty.

Dan: Just like Merrick Garland’s parking space at the Supreme Court, I got nothing.

Changes on the Judiciary Committee

Spoiler alert: Sen. Sessions may not be there.

Sen. Schumer definitely won’t be there.

New ranking member… Dianne Feinstein?

Discuss.

Lena: First woman to serve on the Senate Judiciary Committee. First woman to serve as chair or ranking member of the panel, which is a tremendous role given the Supreme Court and other nominations that will go through the Committee.

Interesting because she’s up for reelection in 2018.

Strong membership under the Ranking Member, as well.

Dan: Important on govt surveillance issues.

New names for The List and conservatives victory lap

Conservatives let themselves dream big about Scalia’s replacement (CNN)

Alito’s guideline on issues of Americans’ liberties: ‘What would Scalia do?’ (WaPo)

Dan: I just need to publicly cry over this for a moment: “Religious freedoms, Alito said, are “in even greater danger.” Quoting “the latest recipient of the Nobel Prize for literature,” Bob Dylan, Alito said, “It’s not dark yet, but its getting there.”

Ted Cruz?

Lena: WSJ article pushing President-Elect Trump to vet and nominate a new Suprem Court justice given pending cases on Obama Administration regulations: http://www.wsj.com/articles/trumps-supreme-court-priority-1479682227

Tim: Holiday episode proposal: SCOTUS List Mock Draft!

New segment: Outrage Fatigue – things to keep an eye on

Jefferson Beauregard Sessions, III

Lithwick on Sessions (Slate)

Reminding listeners why he was rejected as a federal judge

Why this should also be relevant for concern as Attorney General (hi Civil Rights division!)

Already normalized?

Sen. Dianne Feinstein (D-CA), the leading Democrat on the Senate Judiciary Committee, allowed in a statement that she and Sessions “differ on a great many issues,” she emphasized that hearings would be a “thorough vetting” of Sessions’s views — hardly a promise to oppose his confirmation. (Vox)

Internment of Japanese-Americans as a precedent for a Muslim registry

Japanese American internment is ‘precedent’ for national Muslim registry, prominent Trump backer says

One can foresee a case on appeal where the Trump admin’s SG cites Korematsu favorably while arguing the Constitutionality of a Muslim registry.

Or, they do what’s been done before and define the registry as immigrants from Muslim countries and bypass the matter. But will this capture everyone they want to capture? And is this a distinction without a difference from a civil rights perspective?

Adam: They’re not going to have a registration program for citizen Muslims, and they’re going to hold that up as a compromise. That’s partly because any action that requires citing Korematsu favorably is doomed. Korematsu may have set out the strict liability standard for laws that facially categorizes on the basis of race, it is NOT good law. For one, no law/other state action that facially categorizes on the basis of race has been upheld by the Court since Korematsu except in the area of affirmative action. For another:

https://law.stanford.edu/2016/11/18/korematsu-is-not-good-law/

Judicial overruling is not the only way that a decision can lose its status as “law.” Korematsu has been, in the words of Justice Stephen Breyer, “thoroughly discredited”: by Congress, by the Executive Branch, and by the federal judiciary. Scholars and judges have long treated the decision as part of an “anti-canon”—decisions so thoroughly and unanimously repudiated that they exemplify what our law is not. No court treats Korematsu as precedent worthy of being followed. Quite to the contrary: it is routine for judicial nominees to expressly disavow the decision. Chief Justice Roberts did that in his confirmation hearings in 2005; so did Justice Alito in 2006 and Justice Sotomayor in 2009. Justice Scalia ranked Korematsu with Dred Scott as a paragon of injustice. “It is fair to say,” Professor Jamal Greene wrote five years ago in the Harvard Law Review, “that Korematsu is almost uniformly recognized by serious lawyers and judges to be bad precedent, indeed so bad that its use by one’s opponent is likely to prompt a vociferous and public denial.” . . .

No decent person can view the internment as any kind of “precedent” for acceptable government behavior. And no passable lawyer treats the Supreme Court’s decision in Korematsu as good law.

Advice & Consent 018: What's Next?

Welcome to the Advice & Consent Podcast: news views and insight on the future of the supreme court. Shownotes and more are available at scotuscast.com. Email us at advice@scotuscast.com…. Check us out on Twitter and Facebook too. I’m Tim Mooney, joined by the ragtag gang of the usual suspects… Adam Shah and Lena Zwarensteyn. Dan Roth is currently at a cruising altitude of 30,000 feet and will return in a future episode!

 

So.

 

Trump’s victory has enormous consequences for the Supreme Court (WaPo)

 

This just became a very different podcast. What’s next?

 

Merrick Garland? Any closing thoughts on what the GOP stonewall meant and means going forward?

 

Adam

 

  1. Where the heck was President Obama if he really wanted to get Garland confirmed? Where the heck was Hillary Clinton if she thought a court that promoted equality and working people’s rights was important?

 

I’ve discussed this before, but on the stump in 2004, then-President Bush mentioned federal judges in EVERY SINGLE SPEECH. Even Cheney did it. Neither Bush nor Cheney were even lawyers, much less constitutional scholars. The media covered judges all the time in 2004. People voted on the issue. If you NEVER mention the issue, guess what? Your preferences won’t make a difference. I’ve added an appendix to the shownotes with links to each speech in which George Bush mentioned judges during the last 4 days in October 2004 alone (I originally planned to link to speeches for the full month; when it turned out that there were five or more such speeches each day, I limited it to a week and then just four days.  It’s incredible how often Bush spoke about judges).

 

How many times did President Obama mention judges this year? Hillary Clinton?

As for what’s next, [looking at what the Court did today provides some answers]. The Court has routinely been turning down cases that conservative justices usually vote to hear, such as cases involving prosecutors appealing pro-criminal defendant decisions by state supreme courts and lower federal courts to avoid both 4-4 splits and emboldening pro-rights of the accused advocates. I suspect the Court will start granting cert on those cases (maybe as early as tomorrow, or maybe just holding those cases by one week as is their current practices and then granting cert next week) on the hope that even if the Court splits 4-4, by the end of the term, a ninth justice will be on the bench and they can order reargument for Fall 2017.

 

  1. To answer a listener question (shout-out to Marla Wilson) President Obama has one last chance to fill the vacancy. He can give a recess appointment to someone before the new Congress is sworn in on January 3, 2017. That’s true even if the old Congress is in session continuously and gavels the new Congress into session instantaneously. A justice appointed that day would serve at most for one year, until January 3, 2018 (I’m not sure whether it would expire sooner if the Senate adjourned the first session of the next Congress sine die on an earlier date).  There is some question about whether it is constitutional to give a recess appointment to a federal judge (who is supposed to serve for life), but 309 federal judges have received recess appointments, a practice that began with George Washington. President Obama has not recess-appointed any federal judges, but both President Clinton and President George W. Bush did so. Nine SCOTUS justices have received recess appointments, but none since President Eisenhower gave recess appointments to Earl Warren, William Brennan, and Potter Stewart. For more information, see http://www.senate.gov/reference/resources/pdf/RL31112.pdf

   

Lena: McConnell won. We let him.

 

I hate to predict because I don’t want people to disengage. I want people to demand accountability. President Obama is STILL THE PRESIDENT. And we’re still paying our Senators to do their job. They should give him a hearing. They should consider the 54 nominees pending. We have too much to do already.

 

In the future, I have no idea what this means for future nominations. We have a new normal.

 

Tim: I continue to be appalled with what Republicans did. President Obama was disrespected. The American presidential vote in 2012 was dishonored. The GOP will just run the clock out… no hearings and no votes.

 

Look, I’m not a Mitch McConnell guy. Like, at all. But listen to this: “I think it’s always a mistake to misread your mandate, and frequently new majorities think it’s going to be forever. Nothing is forever in this country . . . We’ve been given a temporary lease on power, if you will. And I think we need to use it responsibly.”

 

So, there’s that.

 

Assuming an opening remains on the Court, what’s the timeline for President-Elect Trump’s nomination?

 

Lena: Day one. Probably sooner we’ll have an idea of the top few contenders.

 

Adam As soon as possible. Along with repealing Obamacare, this is something open, tangible, and very high profile that he can give to the base.

   

Tim: I think there’s a likelihood that the nominee will be formally named before the end of January and possibly leaked before inauguration as a test balloon.

 

Who do you think will be picked?

 

Dan from Oakland writes in: “FFS he’s going to put Ted Cruz on the Supreme Court.”

 

Lena: We already have a list. He’s shown his hand. I’m still sticking with 11th Circuit Court of Appeals Judge William Pryor.

 

Adam I think he puts the people on his list, plus Omarosa and Meat Loaf, through an Apprentice-style process to select the winner. On a serious note, I think the co-panelists have made fine picks, but we need to think in terms of at least three new justices on the Court, not just one (no president has put three new people on the Court since Reagan and no one has put 4 on the bench since Nixon (unless you consider Associate Justice Rehnquist and Chief Justice Rehnquist to be different people)). I don’t think Justice Ginsburg makes it until 2020 and it’s a slim possibility that Justice Breyer doesn’t either. Clarence Thomas will be in his 70s by 2020 and has Scalia’s death and Ginsburg’s egregious decision not to resign staring him in the face. I actually think that Anthony Kennedy is very unlikely to resign. He knows that without a liberal replacement for Scalia, the Court is 1 vote away from undoing the reason he’ll be in the history books, gay rights.

 

Tim: Alabama Senator Jeff Sessions. He was an early supporter and one of the handful of names the President Elect specifically mentioned in the victory speech… as I said on a previous show, I think he checks all the boxes for Trump and the right.

 

Filibuster? Nuclear option?

 

Adam: Dems will decide whether to conciliate or to block. Don’t know right answer.

 

Tim: I don’t know how I feel about a filibuster – I’ve never been comfortable with them in the context of nominations (although you can make an argument there’s a difference between lifetime appointments and those that aren’t). I also don’t know how I feel about tit for tat, but it’s clear to me that a vacancy on the Court in 2020 is subject to what I will now call the Garland Rule. I think it’s always been a bullshit position, but I wouldn’t blame Senate Dems from throwing it out there as a make-up call for President Obama. Which is ridiculous.

 

Lena: Our constitutional democracy is threatened: on process and substance.

 

Programming note: We’ll continue the show through the nomination and confirmation process.

   

Appendix

 

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041031-5.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041031-1.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041031-9.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041031-3.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041031-7.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030.html [weekly radio address]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-12.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-8.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-5.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-3.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-15.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-14.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-13.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041029-16.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041029-11.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041029-24.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041028-10.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041028-2.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041028-14.html

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041028-21.html

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Advice & Consent 17: The two-month-long podcast that may last five years?

The show that should have lasted a couple of months during a relatively controversy-free set of hearings may now be relevant for four more years? The ragtag gang of the usual suspects rifles through their nonexistent agreement to figure an out before discussing the latest revelations from Republicans telegraphing more stonewalling less than one week before the election…

Merrick Garland at 232 days

Today as we record the show (11/3) marks day 232 since Judge Garland’s nomination to fill Justice Scalia’s seat. We are about at the 7½ month mark since his nomination on March 16, 2016.

GOP Senators are telegraphing they may shut down HRC nominees – a flip flop from their position of let the next President decide…

Sen. Richard Burr (R-NC) says no SCOTUS confirmations for a President Clinton. Sight unseen.

Sen. Ted Cruz and Sen. John McCain say similar/parallel things.

Let’s pull a Rubio and dispel with the notion that Sen. Cruz doesn’t know what he’s doing… he knows exactly what he’s doing!  What is the truth behind the “longstanding” history of the Court operating shorthanded?

Adam: Changing the size of the court (including the lower courts, mentioning them for Lena’s sake) for partisan and/or ideological reasons is basically saying “Yes, we’re creating a constitutional crisis.”  The first time the size of the courts was changed for partisan reasons was the first time the government shifted partisan control, with the Jeffersonian Republicans defeating the Federalists in 1800.  In a lame duck session, the Federalists vastly increased the size of the federal courts and John Adams appointed and the Senate confirmed a host of new judges.  Jefferson refused to seat these judges, creating a constitutional crisis leading to Marbury v. Madison.

The second time the size of the judiciary was changed because of partisan/ideological reasons was when President William Henry Harrison died right at the beginning of his presidency in 1841.  John Tyler succeeded him (Tippecanoe and Tyler too).  This precipitated a constitutional crisis because Harrison was the first Whig president, and the Whigs did not have much of a coherent platform besides not liking either Andrew Jackson or Martin Van Buren, and Tyler was not a powerful politician in that party, especially when measured against the likes of Henry Clay.  These fissures in the governing party deepened into crisis because Harrison was the first president who died in office, and he died barely a month into office.  There was no precedent for whether the Vice President just became an acting/caretaker president in such a case or whether s/he was a new president.  Tyler set the precedent that the VP assumes the full presidency in such a case, but the Congress at the time wouldn’t accept him and did not confirm his nominees.  But even Tyler’s nominees got votes on the Senate floor and eventually Tyler got a confirmation.

The third and last time the size of the judiciary changed for partisan/ideological reasons was in 1865-1868.  No one would deny that this was a constitutional crisis.  President Lincoln was assassinated just after his second term began and his newly sworn-in VP Andrew Johnson became president.  Johnson, like Tyler, was coming into office following the first president from a new party and wasn’t a grandee of that party (and wasn’t really part of the party at all).  Unlike the Whigs, though, the Republicans had a clear platform on the issue of reconstruction (the extent to which Lincoln agreed with that platform is less clear) and weren’t ready to cede any power to Johnson.  No one would deny that this was a time of constitutional crisis.  The Civil War had just ended.  A large chunk of the nation was under military occupation.  There was a new president who had very little power other than what was explicitly granted him in the Constitution, including the power to nominate judges, and there was a united–and radical–Congress opposing him.  Finally, we had a Supreme Court whose most momentous decision to date, Dred Scott, had been a catalyst for the Civil War, highlighting how important judicial ideology was. These factors would lead Congress to decrease the number of justices each time a justice retired, denying Johnson the chance to appoint justices.  The year Johnson left office and Ulysses Grant took over, 1869, Congress reset the number of justices at nine where it’s been ever since.

Of course, there was a fourth attempt to change the size of the judiciary for partisan or ideological reasons occurred in 1937, when the Lochner-era Supreme Court stymied the New Deal.  Everyone listening probably knows about this from their history class, so there’s no need for detail.  There are some myths about this time in history, but what is undisputably true is that one justice reversed himself on the issue of the New Deal’s constitutionality by the time the next case came before the Court and then a bunch of justices died or retired, letting FDR pack the court in the time-honored way, so the constitutional crisis withered away.

Tim: The size of the Court has fluctuated based on the Judiciary Act of 1789 (and its amendments). Last episode I talked about the blockade of the President’s nominee as revealing a bug in the system that has been covered over for centuries by good behavior and tradition. Rules dictate the process but these norms of the Senate hearing, debating and voting on nominees “are so longstanding and accepted that they have the status of formal rules — until one party decides to break them.” (hat tip to Paul Waldman in the WaPo for that). POTUS nominates, Senate considers and votes. With the Senate deviating and electing them out serving as the only solution is an imperfect solution. Elections every 6 years are a bad way to police this.

Lena: Precisely. Last time we changed the number of justices, there were 37 states. If this was EVER the argument, it could have occurred in February. And to really underscore what Adam said, it takes Congress to do something about changing the numbers. Or I guess I should say, that’s the way that our Constitution and history has had that happened. It’s rather cowardly to just let the number of justices dwindle over time because Senate leadership refuses to consider anyone to the Court. I mean, they way that Senate Republicans are getting things done is by not doing anything which then results in the withering and shutting down of things like our judiciary. This really isn’t acceptable.

Also, because Hamilton: See Geof Stone’s piece on how partisan complete obstruction is. http://www.chicagobusiness.com/article/20161103/ISSUE07/161109954#utm_medium=email&utm_source=ccb-morning10&utm_campaign=ccb-morning10-20161103

What would a multi-year shorthanded court mean for SCOTUS in the short and long term?

Tim: It’s a disaster. The Court can’t maintain the workload shorthanded. The Court also cannot continue with ideological deadlocks that are caused by the GOP Senate’s blockade.

Lena: I don’t want to think about it. It minimizes the Court and possible will take a generation to restore and regain legitimacy, if it does. We need a ninth decisive vote.

Not surprised that I’m going to talk about how understaffed the federal judiciary is at all levels. 114 vacancies current (96) and known future (18), with 38 judicial emergencies.

  • Fun fact: there were 12 judicial emergencies in 2015 when Republicans took over the majority in the Senate.
  • Another fun fact: more than 11% of federal judiciary is vacant. At this time in President George W. Bush’s term in office, it was 4.3%.

So, everyone’s focused on SCOTUS – and I don’t discredit that. But our lower courts are also getting shut down. The next President will likely have well over 110 vacancies to fill on her first day. There are only 870 authorized judgeships. Justice at ALL levels is going to be compromised, delayed. This isn’t how our government is supposed to work.

The President needs to be able to nominate and appoint people.

Congress, and here the Senate, needs to take action.

And the Judiciary needs staffing. ASAP.

Adam:  Sometimes finality is really necessary even if the final judgment is a horrendous miscarriage of justice.  What if the Supreme Court had said about slavery/segregation/Japanese internment/school integration/abortion/marriage equality “gee, we dunno.”

If the Dems (hypothetically) take the Senate is there any scenario where they don’t go for the nuclear option if there is still an open seat after the next Congress comes to session?

Tim: Get out your geiger counters and lead-lined suits. Barring an unlikely reversal by GOP Senators, this goes nuclear and the politics get ugly. Maybe impeachment hearings for Chuck Schumer?

Lena: The only question is when. But only after there’s been even worse obstruction. Because, we’re gluttons?!

Whither Merrick Garland? After a bruising campaign do we foresee the Dems and GOP look to avoid immediate conflict and confirm him in the lame duck session, keeping the powder dry for the next opening?

Tim:

  • Evidence of maybe yes:
    • Former Cruz campaign manager Jeff Roe suggests the right would be pragmatic about confirming Garland (1947 podcast)
    • White House says Garland will remain nominee in lame duck (Talkmedianews)
    • Senators like Jeff Flake and Orrin Hatch suggest an HRC win might mean the most conservative option remaining is Merrick Garland
  • Evidence of no, this gets ugly: basically everything else
    • Pressure from the left to go more liberal and claim mandate from election
    • Pressure from the right to dig in and maintain “Scalia seat”
    • Aforementioned comments from Sen. Burr
    • If the Senate stays with the GOP, the GOP will undoubtedly claim it as a mandate from the people that it’s a check on a President HRC and use that as its reasoning to obstruct.

Lena:

  • I hope so. Serves most people’s best interests.
    • Rs aren’t united on this.
    • Levers – 1st Grassly, 2nd McConnell
      • Sen. Grassley has said holding a hearing is too expensive. But he’s bragging about other hearings he is going to hold.

Adam

Yes. I think the GOP would love to find a way out. I’m not sure that Republicans have that luxury. The forces of extremism coming from Fox, Limbaugh, Ann Coulter, etc that led to Trump are still there. Also, Boehner said, “that’s enough. I’m out.” Maybe that happens in the Senate

Let’s cover the HRC thing next show… if it’s still relevant

HRC criteria for a SCOTUS Justice includes graduation from a “top 5 law school” – elitist or pragmatic? (cough cough elitist)

[Adam note: This was criteria selected by the writer, not by the Clinton campaign]

Tim: If this is a real thing, then I have one name: Thurgood Marshall. [If it’s not, let’s drop it from the rundown on the show]

Lena: Both? Definitely elitist. But I think it’s an interesting point to bring out for people.

  • A maybe? Less elitist speculative list: http://ijr.com/2016/07/662707-clinton-insiders-list-potential-supreme-court-nominees-the-top-pick-will-make-obama-very-happy/

If the GOP (hypothetically) retains the Senate is there any scenario where (hypothetical) President Clinton can get a nominee hearing and vote? Would this be more palatable if the Republican Senate at least held hearings or (!!) a vote on her potential nominees but telegraphed they’d be voted down each time?

Tim: I would love this to be about substance. If the GOP chooses to vote down HRC or BHO nominees on substance, so be it. But they strike me as being more politically craven or even worse cowardly. If the country *really* supports opposing these nominees, shouldn’t these Senators proudly to proclaim the reasons for their opposition using the forum of hearings and votes!? Clearly not.

Lena: Agree, substance would be lovely. Optimistically think they’ll have to do what they can to appear “reasonable” so maybe a few get through. But really… I think more has to be done procedurally to make sure any delays on nominees requires Senators to go to the floor to talk it out – actually say why they won’t return a blue slip, make Senators actually filibuster with words not the threat of it.

Adam: I think just like shutting down the government (the executive branch), eventually, this will become an issue of political survival. At a certain point, Clinton would make this a huge issue and would win if Republicans refused to hold a hearing or an up-or-down vote. “Vote them up or vote them down, but vote” has always been a popular message and the Senate will be forced to act. Republicans know, however, that once the process starts, the nominee becomes more popular (unless you’re Robert Bork), so I think that Republicans know that once they start holding hearings, they won’t be able to vote against nominee after nominee for a full 4 years

With the likelihood that the GOP will take control of the Senate in 2018, do we foresee any Justices taking an early retirement?

Adam: I’m going to let bygones be bygones about whether retirements should have already happened in 2014. Of course they need to happen now.

Tim: I’ve always thought Justices get to retire when they want to but now that we see the “normal rule” of President gets elected, gets to nominate an open seat and Senate holds a hearing and votes is seemingly no longer operable, so perhaps Justices need to be more strategic and mindful of when to end their time on the bench. I hate that should be the case now.

Lena: Depends on the President, of course, but I think there may be a few eyeing this.Chief Judge Garland’s languishing nomination may factor into their calculus.

A happier note to end the show…

Congratulations to retired Justice John Paul Stevens on seeing his beloved Cubs win the World Series for the first time since he was… well the 96 year old SCOTUS alum never saw his Cubs win since it took 108 years for them to do it.

Programming note… we’ll be back next Thursday after the election to read the tea leaves on initial post-election statements from the President-elect, the current President and key Senators as we start the lame duck session.