If Republicans block Obama’s Supreme Court nomination, he wins anyway

[flowers]

https://www.washingtonpost.com/posteverything/wp/2016/02/13/if-republicans-block-obamas-supreme-court-nomination-he-wins-anyway/

But the GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place. That’s what would happen with a proposal to apportion Congress in an entirely new way that would heavily favor Republican districts, which was argued recently. The lower court (in this case a district court which went directly to the Supreme Court for technical reasons) tossed the plan out; conservatives had been hoping the justices would restore it.

[Scalia’s passing starts a court fight for the ages]

The situation is not always good for liberals. Abortion, in a case that has not yet been argued, was subjected to the most onerous restrictions by the normally conservative Fifth Circuit. If the court deadlocks, most of the abortion clinics in Texas would close. On immigration, the court had announced it would take up another case from the conservative Fifth Circuit over whether Obama has the power to stop breaking up families by ordering the government not to deport millions of undocumented immigrants; the lower court ruling blocked Obama’s executive order, so a tie wouldn’t change that.

Most of the country, though, is governed by appeals courts dominated by Democrats. The suit against Obama’s environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. It’s unlikely the now-divided Supreme Court would come up with a majority to stay the new rules: The vote to stay the old ones was (naturally) 5 to 4.

That’s why the effect of an equally divided court has enormous potential to strengthen Obama’s hand in dealing with the Republican Senate in picking a replacement: Even if the GOP blocks his nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority. The institutional cues for Obama are completely different than for the court. The Constitution clearly assigns the task of nominating judges to the president — with the Senate’s advice and consent, to be sure, but for most of American history, presidents got a fair amount of deference. Acting politically is consistent with occupying elected office, so that’s what Obama should do. Political considerations, after all, are what motivate Republicans to pledge to block nominees before any have been announced. This is the moment for Obama to assert his political prerogatives as firmly as his opponents always seem to do.

Right now, McConnell sounds like he doesn’t recognize the peril his party is in. If Obama signals that he’s willing to take advantage of the situation by taking actions like passing new environmental rules or moving for rehearing in the pending cases, he’ll put pressure on the Senate by getting what he wants without his court pick. Two-thirds of the people in the country live in blue-court America.

So maybe someone like D.C. Circuit Judge Sri Srinivasan —confirmed 97 to 0 just three years ago — will look better to the Senate than nearly a year of living with the appellate courts going wild while the cat’s away. Imagine the glee in the most-reversed circuit court in the nation, the liberal Ninth, which will now be able to tell Arizona and Alaska what to do without fear of contradiction. If Obama really cares about that legacy, nothing would establish it more firmly than using his unexpected advantage to appoint someone who will one day be as much of a hero to liberals as Scalia was to conservatives.

[sinkspur]

Short sighted to just consider this term. A lifetime appointment to the Supreme Court should not be confirmed this year, no matter how good or acceptable the candidate might be.

[Fishrrman]

What this article is really trying to do is persuade you (and Republicans-in-power) that "winning" is "losing", and that "losing" is "winning".

Well..... they ain't.

[truth_seeker]

It is really only a matter of time. President Clinton or Sanders will have a democrat Senate majority and the show will go on.

Conservative people talk with each other and fantasize the country is like them, and dismiss anything to the contrary.

They debase the language, calling people like Marco Rubio, John Kasich and Jeb Bush "liberals" and "socialists" for example.

Democrats and independents (the largest "party") watch or hear about last night's debate, and conclude that Republicans are nutcases.

[flowers]

It is really only a matter of time. President Clinton or Sanders will have a democrat Senate majority and the show will go on.

Conservative people talk with each other and fantasize the country is like them, and dismiss anything to the contrary.

They debase the language, calling people like Marco Rubio, John Kasich and Jeb Bush "liberals" and "socialists" for example.

Democrats and independents (the largest "party") watch or hear about last night's debate, and conclude that Republicans are nutcases.

yes.....they have used language to destroy their enemy for as long as I have been alive.

[jmyrlefuller]

Without a new justice, Obama gets brutal to the right TEMPORARY wins.  If he is allowed to replace Scalia with a lifetime appointment, the U.S. Constitution is dead and so is any chance of the right winning anything short of a revolution.

Exactly. We went through this 50 years ago with the Warren Court, and it was nothing short of national disaster. Much of the destruction of our culture and good government stems directly from Warren Court rulings. A lifetime appointment cannot be undone. It is too dangerous.

We've been lucky the past 25 years to have almost perfect balance on the Court, pleasing and displeasing both sides equally. To permanently install a new justice that would tip the balance too far to a level that we know from recent history will be damaging to the nation is foolish.

There have been calls for Obama to make a recess appointment the next time the Senate goes out of session. Let him. But as for a lifetime appointment, after his last two have been reliable lapdogs voting in favor of almost every proposal he has put forth, he can't be trusted to make a good decision.