slatten49 Loc: Lake Whitney, Texas

By Andrew Romano

When centrist Supreme Court Justice Anthony Kennedy announced Wednesday that he would be retiring at the end of July, bestowing upon Donald Trump the opportunity to appoint his successor and shift the court decisively to the right, reaction among liberals was apocalyptic — to put it mildly.

Talk on social media quickly turned to all the laws that would likely be overturned — Roe v. Wade, affirmative action, L***Q protections, restrictions on capital punishment, and so on — if and when Trump tips the balance of a court that has long been evenly divided among conservatives and liberals, with Kennedy often serving as the deciding v**e, and installs a solid 5-4 conservative majority instead.

Then Democrats started to wonder. Under Sen. Majority Leader Mitch McConnell, Republicans infamously refused to even consider Merrick Garland, President Barack Obama’s final nominee, to fill the seat vacated by the unexpected death of conservative Justice Antonin Scalia 269 days before the 2016 e******n. Kennedy has announced his retirement 132 days before the 2018 e******n.

Could Dems therefore take a page from the GOP playbook and block whomever Trump appoints, claiming, as McConnell did at the time, that “the American people” deserve to have “a voice in this vacancy” when they cast their b****ts in November?

Technically, the answer is yes. But because of a momentous GOP rule change, the process would be much more difficult than it was as recently as 2016 — so difficult, in fact, that Democrats may conclude it isn’t worth the political cost.

In 1917, the Senate replaced its long-standing tradition of “talking filibusters” with a two-thirds supermajority requirement: as long as 67 senators supported a particular measure or nomination, they could cut off debate and proceed to a v**e — meaning that 34 senators could block it. In 1975, the Senate lowered its supermajority threshold to 60; now 41 senators were required for a filibuster.

That rule still stands for most legislation, but in 2013, Democrats — who were frustrated by Republican efforts to stonewall Obama’s nominees to executive branch positions and lower court judge-ships — eliminated the need for 60 v**es on such nominations, saying that a simple, 51 v**e majority would suffice. Significantly, they left the 60-v**e requirement in place for Supreme Court nominations.

Then, in 2014, the GOP won control of the Senate; in 2016, they won the White House. Ten days after taking office, President Trump nominated Neil Gorsuch to fill Scalia’s still vacant seat, and when Democrats tried to filibuster in April 2017, McConnell invoked the so-called nuclear option, abolishing the 60-v**e requirement for Supreme Court nominations as well. Gorsuch was confirmed three days later, 54-45.

Currently, Democrats control 49 Senate seats — two short of the simple majority they would need to filibuster a Trump nominee. So how could they “technically” block the president’s pick? And even with all the outrage on the left, why are they still unlikely to do it?

Earlier this month, University of Miami political scientist Gregory Koger, a specialist in filibustering and legislative obstructionism, explained on Vox.com that, according to Article 1, Section 5 of the U.S. Constitution, “a majority … shall constitute a quorum to do business” in the Senate — meaning that Democrats can basically shut the place down by refusing to v**e on anything.

With only the barest 51-v**e majority — and one of their own, Arizona Sen. John McCain, on extended leave in Arizona as he grapples with what is likely to be terminal brain cancer — Republicans would have difficultly mustering a quorum without at least some Democratic help. “In the month of June, there have been an average of 1.8 Republican absences across 18 roll call v**es,” Koger wrote, “so even if McCain returned to the Senate, the majority would struggle to consistently provide a floor majority.” If McCain doesn’t return, and all 49 Democrats refuse to participate, the 50 Republican senators left in Washington would fall one short of a quorum. (The Senate precedents on quorums do not mention whether Vice President Mike Pence could contribute a 51st v**e.)

In that case, “the Senate can do nothing,” Koger concluded. “No bill can pass, no amendment can be decided on, no nominations can get approved.” The Senate would screech to a halt for lack of a quorum — and Democrats could conceivably delay a confirmation v**e until a new Senate, perhaps with a narrow Democratic majority, is seated next January.

Asked to confirm that Democrats could use the quorum rule to block Trump’s Supreme Court nominee indefinitely, Koger tells Yahoo News the answer is “technically yes,” assuming that the word “majority” in the Constitution means “51 v**es, not 50” and that the vice president can’t “v**e to make a majority.”

The fact that Democrats can shut down the Senate, however, doesn’t mean they will. “This would be a confrontational tactic,” Koger explained. “Confrontational” is probably too gentle a word for it. Obstructing a president’s Supreme Court pick by completely shutting down the Senate would require political winds that were blowing strongly in Senate Democrats’ favor. It’s not clear they are.

For one thing, 10 Democratic senators are running for ree******n in states that T***p w*n in 2016, and Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana all v**ed to confirm Gorsuch. Would every one of these at-risk senators be willing to imperil their ree******n chances by striking over Trump’s next nominee? Democrats can’t afford a single defection.

Then there’s the fact that the argument McConnell made in 2016 is different than the argument Democrats would have to make now. Back then, McConnell was employing the existing filibuster rules to block a nomination made in a p**********l e******n year; his rationale was that the president is the person with the power to put forward such a nomination, and a new one would be elected soon, so the Senate might as well wait. Today, Democrats would have to circumvent the existing filibuster rules to block a nomination made in a midterm e******n year. They might argue that midterms determine control of the Senate, and that the Senate is the body with the power to confirm such a nomination. But v**ers will likely find that argument even less compelling than McConnell’s — especially because Obama himself nominated Elena Kagan in a midterm year (2010) and Republicans chose not filibuster her then.

Instead, Trump will nominate Kennedy’s replacement as soon as possible; on Wednesday, the president told reporters the process would “begin immediately.”

McConnell will push for a confirmation v**e before E******n Day. “We will v**e to confirm Justice Kennedy’s successor this fall,” he vowed Wednesday.

Most Democrats will decry this maneuvering as “the absolute height of hypocrisy,” as Senate Minority Leader Chuck Schumer put it shortly after Kennedy announced his retirement. “People are just months away from determining the senators who should v**e to confirm or reject the president’s nominee,” Schumer said on the floor of the Senate, “and their voices deserve to be heard now as Senator McConnell thought that they deserved to be heard then.”

Others will try to pressure imperiled GOP senators such as Nevada’s Dean Heller and pro-choice Republicans like Susan Collins of Maine and Lisa Murkowski of Alaska to break with their party and torpedo Trump’s nominee. The Democratic Party will make the midterms all about Kennedy’s replacement.

But despite these efforts, Trump’s nominee will probably be confirmed on a party-line v**e and the composition of the highest court in the land will shift rightward for a generation or more.

bahmer

Since the democrats chose to have at their campaign slogan if you will as h**e Trump and their running on that and allowing i*****l i*********n as their other part of their campaign they are really not running on what would be called a strong directions for the American people. Usually the party that is not in control comes up with the lions share of the victories in the midterms. This year due to the act that Trump had the economy going and appears to have Kim Jung Un under control in North Korea I think will give the lions share to the republicans. I may well be all wet but will have to wit and see. Either way I bet that the supreme court nominee will be confirmed before the midterm e******ns take place.

Fit2BTied Loc: Texas

Wow. Clear and concise explanation of the situation. We all need to pray that President Trump picks the right man or woman and that the Senate does the job we elected them for.

Liberty Tree

An extra piece of this equation is that there a a couple of pro a******n GOP Senators who may oppose a pro life nominee if they believe Roe V Wade is in danger of being overtiuned.

Super Dave Loc: Realville, USA

Kennedy was a l*****t. Not a centrist.

slatten49 Loc: Lake Whitney, Texas

That would depend, of course, upon individual perceptions. During his tenure on the SCOTUS he has generally been regarded as a centrist. Ronald Reagan nominated him, knowing of his conservative rulings as a judge in the Sacramento area. Of course, by today's GOP standards, even Ronald Reagan would be considered a 'liberal.'

Super Dave Loc: Realville, USA

The Constitution and US law is the center.

Siding with the Constitution/U S law 1/2 of the time and going left of it the other half of the time is not centrist. It's l*****t.

bahmer

Today anyone coming out of California is classified a liberal. But I could see that by Ronald Reagan's understanding he was a conservative in a growingly liberal state and that would by today's standards make him a centrist to a degree.

slatten49 Loc: Lake Whitney, Texas

Ronald Reagan's remarks announcing the nomination of Anthony M. Kennedy to be an associate justice of the Supreme Court of the United States, November 11, 1987.....(With attention to the 5th paragraph of President Reagan's remarks.)

"It's not just in fulfillment of my constitutional duty but with great p***e and respect for his many years of public service, that I am today announcing my intention to nominate United States Circuit Judge Anthony Kennedy to be an Associate Justice of the Supreme Court. Judge Kennedy represents the best tradition of America's judiciary.

His career in the law, which has now spanned the better part of three decades, began following his graduation from Stanford University and Harvard Law School when he joined a prominent San Francisco law firm. Later, after the death of his father, who was himself a well-respected attorney in Sacramento, Tony Kennedy took over his father's law practice. He dev**ed himself to a wide range of matters including tax law, estate planning and probate, real estate law, international law, and litigation.

In 1965 he began a teaching career on the faculty of the McGeorge School of Law at the University of the Pacific. He has been teaching continuously since that time as a professor of constitutional law. In 1975 President Ford appointed him to the United States Court of Appeals, where he has established himself as a fair but tough judge who respects the law. During his 12 years on the Nation's second highest court, Judge Kennedy has participated in over 1400 decisions and authored over 400 opinions. He's a hard worker and, like Justice Powell, whom he will replace, he is known as a gentleman. He's popular with colleagues of all political persuasions. And I know that he seems to be popular with many Senators of varying political persuasions as well.

I guess by now it's no secret that Judge Kennedy has been on the very shortest of my short lists for some time now. I've interviewed him personally and, at my direction, the FBI, the Department of Justice, and the Counsel to the President have concluded very extensive preliminary interviews with him. Judge Kennedy's record and qualifications have been thoroughly examined. And before I submit his formal nomination to the Senate, a full update of his FBI background investigation will have been completed.

Judge Kennedy is what many in recent weeks have referred to as a true conservative—one who believes that our constitutional system is one of enumerated powers—that it is we, the people who have granted certain rights to the Government, not the other way around. And that unless the Constitution grants a power to the Federal Government, or restricts a State's exercise of that power, it remains with the States or the people.

Those three words, "We the People," are an all important reminder of the only legitimate source of the Government's authority over its citizens. The preamble of the Constitution, which begins with these three powerful words, serves also as a reminder that one of the basic purposes underlying our national charter was to ensure domestic tranquility. And that's why the Constitution established a system of criminal justice that not only protects the individual defendants but that will protect all Americans from crime as well.

Judge Kennedy has participated in hundreds of criminal law decisions during his tenure on the Ninth Circuit Court of Appeals. In that time he's earned a reputation as a courageous, tough, but fair jurist. He's known to his colleagues and to the lawyers who practiced before him as diligent, perceptive, and polite. The hallmark of Judge Kennedy's career has been devotion—devotion to his family, devotion to his community and his civic responsibility, and devotion to the law. He's played a major role in keeping our cities and neighborhoods safe from crime. He's that special kind of American who's always been there when we needed leadership. I'm certain he will be a leader on the Supreme Court.

The experience of the last several months has made all of us a bit wiser. I believe the mood and the time is now right for all Americans in this bicentennial year of the Constitution to join together in a bipartisan effort to fulfill our constitutional obligation of restoring the United States Supreme Court to full strength. By selecting Anthony M. Kennedy, a superbly qualified judge whose fitness for the high court has been remarked upon by leaders of the Senate in both parties, I have sought to ensure the success of that effort.

I look forward, and I know Judge Kennedy is looking forward, to prompt hearings conducted in the spirit of cooperation and bipartisanship. I'll do everything in my power as President to assist in that process."

bahmer

Interesting thanks.

Bad Bob Loc: Virginia

Super Dave Loc: Realville, USA

There's 3 old l*****t Justices left that could be replaced... The 3 pictured would be an improvement.

Peewee Loc: San Antonio, TX

Mike Lee seems to be leading the pack for now and he can v**e for himself too.

Super Dave Loc: Realville, USA

Haha.. Nice.

king hall Loc: Tucson,AZ.

I'm betting it's a woman. I would if he could get away with nominating his sister?