- How feckless for an editorial board to undermine institutional legitimacy of a key check on executive power, the Supreme Court, by spreading notion that some of its seats are “stolen” [New York Times]
- Eastern District of Tumbleweeds? High court asked to curtail forum shopping in patent suits [Washington Legal Foundation on TC Heartland LLC v. Kraft Foods Group Brands LLC, more on E.D. Tex.]
- Federal charges result in plea deal. State then charges defendant over same conduct. Ought to call it double jeopardy, even if that means overturning misguided “dual sovereignty” doctrine [Ilya Shapiro and Thomas Berry on cert petition in Walker v. Texas]
- “Justices Struggle With Cheerleader Uniform Case That Holds Big Implications For Fashion” [Daniel Fisher on Star Athletica v. Varsity Brands]
- More Federalist panels on Justice Scalia’s influence: showcase panel on his constitutional influence; federalism and separation of powers with Roger Pilon et al.; the impact of his writing style; criminal law and the Fourth Amendment; Heller, guns, and the Second Amendment;
- Appointments Clause makes one of few checks on unaccountable-by-design CFPB, Court should enforce it seriously [Ilya Shapiro on cert petition in Gordon v. CFPB]
7 Comments
Regarding the Times’ “stolen seat” editorial, does anyone believe that the article would read the same if the situation was a lame duck Republican and an incoming Democrat POTUS? The Times has already shown its two faces on the nuclear option. Good for Democrats to invoke it. Bad for Republicans to have even considered it.
The Senate was just following the Biden rule…I’m surprised (NOT) that the NYT didn’t know this.
NYT and USSC
The NYT is asking Senate Democrats to filibuster conservative court nominees. They apparently forgot that Harry Reid put the filibuster in a deep coma seven years ago.
Democrats allowed Dubya Bush to replace two USSC conservatives with conservatives, and Republicans allowed Obama to replace two liberals with liberals. (Sandra Day O’Connor also had some libertarian and federalist leanings which, unfortunately, did not continue in her conservative successors.)
This year, Republicans balked when Obama tried to replace a conservative with a liberal, shifting control of the USSC. The NYT wish they could go back in a time machine and warn Senate Democrats to block Nixon and Reagan from shifting the USSC rightward.
Question:
If there was an ideological standoff between President and Senate, would it be legal to confirm two nominees in a package, one liberal and one conservative, to replace one liberal and one conservative USSC judges?
“They apparently forgot that Harry Reid put the filibuster in a deep coma seven years ago.”
EXCEPT for Supreme Court nominees. Their confirmation is still subject to Senate filibuster.
Except that there is nothing to stop the Republican majority in the Senate from putting an end to filibusters for Supreme Court nominees.
If the Democrats threaten to filibuster every Trump SCOTUS nominee, there isn’t much political downside for the Republicans to pull the trigger on the “nuclear option”.
“If there was an ideological standoff between President and Senate, would it be legal to confirm two nominees in a package, one liberal and one conservative, to replace one liberal and one conservative USSC judges?”
Yes, but the President would have to nominate one liberal on one conservative first. The Senate can not confirm someone the President hasn’t nominated.
Such a deal was struck under GW Bush for Circuit court judges. Bush re-appointed a Clinton Nominee.
@cc–
Each new Congress sets its own rules. Using Harry Reid’s precedent, the new Senate will not accept a filibuster of a conservative replacement for Scalia. But, if the Democrats don’t force a confrontation on the Scalia seat, they might be given a more respectful hearing on the replacement of liberal justices. Maybe Judge Garland might get a second run.
On the other hand, the anti-abortion people will need one more vote beyond Scalia’s if they want to overturn Roe v Wade.