Monday, February 22, 2016

Filling Scalia's vacancy

People have been going on Twitter rages complaining that Republican senators are refusing to do their job. The word "treason" has been thrown about like f-bombs on Xbox Live. And most of the adults using the "t-word" have no idea what it really means. It's just something they say when they are angry. If people are going to be upset about the nomination process, then let's be honest about our real reasons for being upset. Conservatives are upset about the possibility that Scalia might not be replaced by another conservative, and liberals are mad that Obama's nominee might get borked.

Article 2, Section 2 Clause 2 gives the President the power to nominate Supreme Court justices with the advise and consent of the Senate. The President can nominate whoever he wants, and the Senate is under no obligation to consent to anything. Obama can systematically nominate everyone who has ever graduated from law school and the Senate can vote them all down if they so choose. And the Supreme Court can function fine with a vacancy. Nine isn't a sacred number or anything, especially back when FDR was President.

There are a couple things that I think might happen. Mitch McConnell can hold the line until after the election, but he would run the risk of Hillary Clinton winning and then nominating Barack Obama for SCOTUS. But he isn't going to confirm the first person Obama nominates either. So what might happen is Obama will nominate a very liberal sacrificial lamb for the Senate to vote down. And then he'll nominate what passes for a moderate these days, and the Senate will confirm that judge to keep this from being an issue during the election.

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