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    Republicans gearing up to fill possible Supreme Court vacancy this election year

    Republicans gearing up to fill possible Supreme Court vacancy this election year

    Everyone is focused on Ginsburg’s health, but would one of the older conservatives (Thomas, Alito) retire at the end of June to make sure the seat is filled by another conservative?

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    Can you feel the tension? Every time Ruth Bader Ginsburg goes to the hospital or has a medical diagnosis or procedure, you can feel it. What if this is the time?

    Of course, while Ginsburg is the oldest and most infirm of the Supreme Court Justices, the unexpected death of Antonin Scalia is a reminder that the unexpected can happen.

    Mitch McConnell famously has bragged that of course the Republican Senate would confirm a replacement for a Supreme Court vacancy. Comparisons to Merrick Garland were inaccurate, because the Garland was nominated by a president whose party did not control the Senate.

    I wrote about McConnell’s explanation in October 2018, McConnell opens up possibility Senate would confirm Trump SCOTUS nominee in 2020:

    Mitch McConnell dropped a political nuclear bomb on Fox News Sunday with Chris Wallace.

    In discussing Senate confirmation of Supreme Court nominees, McConnell discussed how he did not allow Obama’s nomination of Merrick Garland to go forward. He contrasted the Republican position with Democrats’ attacks on Brett Kavanaugh by pointing out that Republicans didn’t try to destroy Garland, they simply followed Senate tradition of not voting on a nominee in a presidential election year.

    But in describing that history, McConnell said that the history of the Senate going back to the 1800s was to not vote on a nominee in a presidential elections year where the president is of a different party than the party controlling the Senate.

    That last provision was picked up on by Wallace, who asked if that meant Republicans would confirm a Trump nominee in the next presidential election year.

    McConnell didn’t answer directly, he just repeated that the tradition was not to confirm in the last year where the president was of a different party than controlled the Senate. That would mean, but McConnell didn’t say explicitly, that if there were a Supreme Court vacancy in 2020, the Senate would move forward with confirmation despite the looming 2020 presidential election.

    McConnell repeated the objective in May 2019, McConnell pours salt in Democrats’ Merrick Garland wound: Yes, we’ll confirm Trump SCOTUS nominee in 2020:

    McConnell just announced, with a smile on his face, that if there were a Trump nominee for a Supreme Court vacancy in the 2020 election year, the Republican controlled Senate would confirm that nominee.

    Lindsey Graham, Chair of the Senate Judiciary Committee which would hold confirmation hearings, has just reiterated McConnell’s point. The Hill reports:

    Sen. Lindsey Graham (R-S.C.) said the Senate would work to confirm a Supreme Court nominee this year if a vacancy arises, saying the circumstances are different from 2016, when Republicans blocked then-President Obama’s nomination of Merrick Garland.

    Graham, who chairs the Senate Judiciary Committee, noted that both the Senate and the White House are held by Republicans, versus in 2016, when the GOP-held Senate denied Garland a hearing.

    “Well, Merrick Garland was a different situation. You had the president of one party nominating, and you had the Senate in the hands of the other party. A situation where you’ve got them both would be different. I don’t want to speculate, but I think appointing judges is a high priority for me in 2020,” Graham said in an interview on “Full Court Press with Greta Van Susteren” set to air Sunday.

    “If you look into the history of the country, there had not been an occasion where somebody was confirmed in a presidential election year after primary started when you had divided government,” he added.OThe discussion takes place starting at the 5:00 minute mark of the video at Greta’s website. Unfortunately, the video does not appear to have an embed code.

    Other Republicans are more blunt: We’re filling the seat no matter what. Politico reports:

    “We’re going to fill it” if there is one, said Sen. John Barrasso (R-Wyo.), the No. 3 GOP leader. “With Justice Scalia … people might not have thought he was the one, because he wasn’t the oldest at the time. You just never know.” ….

    “My guess is yes. That’s ultimately a decision the leader makes. But I think you’ve heard him speak to the subject before. He believes if there was a vacancy, he’d fill it,” said Sen. John Thune of South Dakota, the GOP whip. “Confirmation hearings in the age of COIVD-19 would be very interesting but I’m sure no less contentious than the last one.” ….

    In a brief interview, Senate Judiciary Chairman Lindsey Graham (R-S.C.) declined to say there was a cut-off to when a new vacancy might be considered. His predecessor, Sen. Chuck Grassley (R-Iowa), declined to hold a hearing for Garland.

    Sen. Roy Blunt (R-Mo.) said a Supreme Court opening represents the “ultimate hypothetical” — but one Republicans would be prepared to respond to whenever it occurs.

    “There’s no cut off,” said Blunt, the No. 4 GOP leader.

    In addition to Ginsburg’s health, senators are also keeping tabs on whether any other justices will retire. Four justices are 70 or older: Ginsburg, Stephen Breyer, Clarence Thomas and Samuel Alito.

    So, if there is a vacancy, expect Republicans to try to fill in before November. And it the vacancy is created by one of the liberals, expect all hell to break loose as Democrats not only raise Merrick Garland, but the Wuhan coronavirus disruption as well.

    Possible unexpected development:

    Would one of the older conservatives (Thomas, Alito) retire at the end of June to make sure the seat is filled by another conservative?


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    fscarn | May 18, 2020 at 11:47 am

    Thomas & Alito condition their soon-to-be-announced retirements (one or both) on the Don’s promise, channeling M. Corleone, to “settle all family business” and to replace them with people in the mold of Scalia, with each nominee to be in his/her mid-40s. The core of an originalist bloc (four justices; Roberts unfortunately is not imo dependably in that core) remains in place for decades creating solid originalist precedents.

    And when Trump wins his second term, ooh-la-la. Then we’ll get an originalist core of five or more.

      hald in reply to fscarn. | May 18, 2020 at 12:42 pm

      to replace them with people in the mold of Scalia

      Not Scalia, Thomas.

      Usually when Scalia and Thomas disagreed, I think Thomas had the better argument.

      I certainly understand the popular preference for Scalia, as he spoke at many conferences over the years in contrast to Thomas, who maintained a much lower profile.

      Thomas is speaking (writing, actually) to a much smaller, but much more critical audience; future supreme court justices. When the court is considering overturning a prior precedent, they will sometime look at dissenting opinions from that case and use that as a starting point. This is an area where Thomas has been absolutely prolific, much more so than Scalia was.

        Milhouse in reply to hald. | May 19, 2020 at 9:27 am

        Yes. The big issue is no long so much originalism as stare decisis. Kavanaugh, for instance, is a fairly solid originalist, but he is Kennedy’s acolyte when it comes to precedent, so I expect him to be on the wrong side of any abortion decision. Not because he wants to be but because he believes it to be his duty.

        Thomas is still a lone voice on the court arguing his position that when the court believes a constitutional precedent it set is wrong it must reverse itself, because the current doctrine illegitimately gives the court the power to amend the constitution. Not even Scalia bought that, but he keeps arguing it in decision after decision, and eventually younger justices may be convinced.

        Another position of Thomas’s in which he’s so far a lone voice but has completely convinced me, is that while the rest of the first amendment, including the free exercise clause, is incorporated into the 14th, the establishment clause is not. It is the only clause in the first amendment that does not protect an individual right, and the 14th specifically protects rights. There is no right to the absence of an established church; so the 14th doesn’t forbid the states from establishing one.

          Carl in reply to Milhouse. | May 19, 2020 at 4:14 pm

          But no state will ever try that.

            Milhouse in reply to Carl. | May 19, 2020 at 4:19 pm

            Not formally, but states do things all the time that can be seen as endorsing one religion over others, or religion in general over non-religion. The USA can’t do that, but every time such a case comes up (and they do so regularly) Thomas points out that nothing in the text of the constitution says states can’t.

    2smartforlibs | May 18, 2020 at 11:52 am

    That is called the BIDEN rule. IT goes back to GHW Bush

    Hieronymous Machine | May 18, 2020 at 1:03 pm

    This topic is yet another reminder of why so many voted the way they did. While re: personality the vote might have been perceived as a choice between “the lesser of two evils” (and even *that* gradation, as we are learning, was much more nuanced–and much less subtle!), the appointment of federal and Supreme Court justices is where folks always knew the *real* action was going to be.

    Oregon Mike | May 18, 2020 at 4:12 pm

    Good Grief! Thomas is just shy of 72. He’s got a good ten years at least to go.

    If he were to be thinking about retiring, it would be at the end of Trump’s SECOND term, and then only if he thought the odds better than even that a Democrat would be elected president.

    From all appearances, Thomas is a happy guy. As he’s said (paraphrase), “I don’t have any stress. I cause stress.”

    He’s gonna be around for quite a while. Rejoice!

    I’ve seen it reported that the “Wise Latina” isn’t very healthy either…

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