David Lat, "Handicapping President Biden's Supreme Court Shortlist"

Lat's Substack article seems eminently sensible, and, as usual, highly readable.

Comments

[ragebot]

Interesting blurb from Time of all places about how the pubs can stop any SC nomination. Combined with the Tribe claim that Harris can not vote for and SC nomination it does not look like an easy confirmation process.

https://www.msn.com/en-us/news/politics/how-republicans-can-block-stephen-breyer-s-replacement/ar-AATaGWC?ocid=msedgdhp&pc=U531

[Ridgeway]

Interesting piece, but I doubt McConnell would pull that stunt. It would energize the Democrats at a time when they are about to implode in the midterms. Giving Biden a minor victory that doesn't affect the balance of the court is the smart long-term play.

[ragebot]

After reading all the posts about how SCJs have resigned contingent on a replacement being confirmed I have to ask has any SCJ been confirmed, or even subject to a confirmation vote, without being voted out of committee.

Maybe the dems could change the Senate rules to get around a nominee being stuck in committee but absent that it does seem like the pubs could bottle up any nominee the dems put forward.

Not to mention what happens if this works and a pub is elected in 2024 who nominates a Breyer replacement who is confirmed based on Breyer's 'resign when a replacement is confirmed'.

As long as we are getting lost in the woods lets really get lost.

[F.D. Wolf]

Of course, nothing in the Constitution requires hearings, or committees for that matter. For much of our history, it was not unusual for a nominee to be voted on a few days after his nomination, if not the very same day. The modern practice of judicial hearings began in 1915 with Woodrow Wilson's nomination of Louis Brandeis to the Court.

The Republicans have no interest in delaying the hearings. What advantage is to be had? If anyone wants to string out the process to right before the elections, it is Biden and the Democrats, to keep the country focused on the "historic moment" of a black woman ascending to the Supreme Court for the first time, as opposed to other matters less favorable to Democrat electoral fortunes.

[JJJSSS]

"After reading all the posts about how SCJs have resigned contingent on a replacement being confirmed I have to ask has any SCJ been confirmed, or even subject to a confirmation vote, without being voted out of committee."

Earl Warren resigned contingent on his replacement being confirmed; when Abe Fortas turned out to be scandalous and was filibustered, Warren decided that it would be too political to revoke his offer of resignation and allowed Nixon to appoint his successor (which he later regretted). Warren continued serving until a couple of weeks after Burger was confirmed and he resigned/Burger was sworn in the same day.

[Free Exercise]

The linked article appears to be incorrect that a motion to discharge a nomination from Committee requires 60 votes, rather than a simple majority. That hasn’t been the case for other nominations, and reportedly at the Time website the article has been significantly revised, and the headline changed to “Biden, Senate Democrats Can Replace Justice Stephen Breyer on Party Lines”. It’s behind a paywall, so haven’t confirmed that, but no one else seems to suggesting that there will be a problem

[ragebot]

Not disagreeing and the link that came up in my newsfeed was not the Time article but a repost of it. I would be interested in seeing links to where a nominee was not forwarded by the committee and still would up getting a vote. While what happened long ago is of historical interest my understanding is that if something does not get out of committee it is often dead in the water. Not saying the Senate does not have options to work around it just that traditionally a way to stop something was to get it stuck in a committee. This has been a traditional stalling tactic for bills for as long as I can remember. On the other hand the Senate does make it's own rules and that is always an option.

[JJJSSS]

Apparently there was a nominee for one of the Undersecretary of Defense positions that had a 51-50 discharge petition followed by a 48-45 vote in the Senate. Colin Kahl is the name to look for.

[JonFrum]

"The nominee must be a black woman."

How'd that work out last time?

[Tabman]

Question: how is it that a nomination and confirmation may occur, consistent with the Constitution, before there is a vacancy? Justice Breyer says he will retire when the Court rises at the end of the term if a successor has been nominated and confirmed, meaning before the retirement. I know others have done this, but how can this be right? If the Justice didn't like the confirmed successor, he or she could just change their mind and not retire. How is this procedure OK?

[ragebot]

Gotta say that issue never came up in my Con Law class.

[Josh R]

I think (*) Breyer's letter said he would retire without regard to whether he liked his successor so long as she is confirmed before the summer recess.

(*) "I intend [...] assuming." Hmm.

[Noscitur a sociis]

While I can see your point, as a practical matter this is extremely common and not, to my knowledge, regarded as controversial.

[Joe_dallas]

I recall that was how Sandra day Oconner retired

[F.D. Wolf]

The short answer is that there is nothing in the Constitution requiring actual, as opposed to anticipated, vacancies to exist before they are filled.

Think of the issues if it were otherwise. In the judicial arena, it provides continuity and avoids month-longs vacancies, which are problematic in the Supreme Court, but would be even more so in district courts as parties wait to have their cases heard,

And how would this work when presidential administrations change. Would all the outgoing Cabinet have to resign before January 20, or would the Senate have to wait until January 20 to consider nominations of new Cabinet officers?

[F.D. Wolf]

As to someone who resigns, but then "changes his mind", see, e.g, Edwards v. United States, 103 U.S. 471 (1880) ("The common law rule is,,, that the resignation of a public officer is not complete until the proper authority accepts it or does something tantamount thereto such as to appoint a successor.")

[David Nieporent]

The short answer is that there is nothing in the Constitution requiring actual, as opposed to anticipated, vacancies to exist before they are filled.

If there's no vacancy, then there's nothing to fill. You can't appoint someone to a job that's taken.

Think of the issues if it were as you say: tomorrow Biden could nominate, and the Senate could confirm, 9 Supreme Court justices. (And several hundred other judges.)

(Yes, I acknowledge that this is common, but I've objected to it before.)

[F.D. Wolf]

The Constitution does not refer to "vacancies" in the Appointments Clause, but does in the Recess Appointments Clause.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

"Vacancies" appears in the second sentence, but not the first. Why import it there? Plain reading suggests that a "vacancy" is only necessary for a recess appointment, not a regular one.

[F.D. Wolf]

This makes eminent sense, as the Drafters of the Constitution would not want the President to make anticipatory recess appointments as a way to get around Advice and Consent, and the recess appointment was something of an "emergency" power.

But this concern would not exist for filling an anticipated vacancy, and the advantages would be obvious. Why would the drafters object to the President and the Senate filling a position they knew would soon be open? What could be gained by waiting for a literal vacancy and the obvious problems such a delay would entail? Who would design such a system? And why?

[David Nieporent]

Because you can't know that it will soon be open. You can suspect it will, but until he resigns he hasn't resigned. Unless you think that his announcement of an intent to resign is irrevocable.

[WuzYoungOnceToo]

If there's no vacancy, then there's nothing to fill. You can't appoint someone to a job that's taken.

His wording could have been better, but I think his meaning was pretty clear given the context. If it is known ahead of time that a vacancy will be occurring there's nothing to prevent proactive steps being taken to ensure that it will be filled when it occurs.

[Ridgeway]

So I see that Breyer has officially announced his retirement, contingent on his replacement being confirmed.

Is that kosher? Until he actually steps down, there is no vacancy for which a candidate can be nominated. Moreover, there seems to be a separation of powers issue if the sitting justice essentially has a unilateral veto right over his/her successor.

[Ridgeway]

I see Tabman beat me to it.

[Josh R]

Tabman also pointed out it's been done before. O'Connor made her retirement contingent on confirmation (but she didn't claim any veto power of who the successor was). And, she ended up staying longer than originally expected when Rehnquist died and Roberts, who was initially nominated to replace her, instead replaced Rehnquist.

[not guilty]

Earl Warren also retired effective upon confirmation of his successor, and there was obviously no prospect of Nixon appointing someone to Warren's liking.

[F.D. Wolf]

On July 9, 1902, Justice Horace Gray sent a letter of resignation to President Roosevelt stating, "I should resign to take effect immediately, but for a doubt whether a resignation to take effect at a future day, or on the appointment of my successor, may be more agreeable to you."

Roosevelt responded two days later, regretfully accepting Gray's resignation, adding, "If agreeable to you, I will ask that the resignation take effect on the appointment of your successor."

Gray would die on September 15, still in office, before his successor Oliver Wendell Holmes was nominated on December 2 and confirmed two days later.

[Joe_dallas]

On the Docket are two race based cases and Biden is going to nominate someone based on race

[Life of Brian]

As is common with tone-deaf, arrogant bureaucrats, their reflexive response to the painfully evident failure of a policy (here, his incredibly tanking poll #s among minorities after taking every possible broad-brush position to pander to them over the past couple of years) is just to stubbornly soldier on even harder with the exact same policy.

Should be fun to watch. I'm stocking up on popcorn.

[not guilty]

Clarence Uncle Thomas was a racial appointee. Indeed, he is American history's most prominent beneficiary of affirmative action. Should he recuse himself from the upcoming AA cases?

[Joe_dallas]

Yes he may have been an AA beneficiary early in his career. Though to his credit, he has proven to be one of qualified justices over the 100 or so years. Though, he got the wrong answer in Gamble, which only Gorsuch and Ginsburg got correct.

[CJColucci]

Justice Thomas is not a stupid man and is fully competent -- like literally thousands of other lawyers -- to sit on the Supreme Court. But a white version of Thomas by way of qualifications -- roughly, me -- would not have been put on the D.C. Circuit or the Supreme Court in the first place, even though either of us would have managed not to embarrass ourselves. Everyone knows this and most people have no problem with it. Thomas knows it and resents it.

[Joe_dallas]

There are very few Thomas opinions and/or votes that I have disagreed with Gamble being one notable exception which gorsuch dissent was spot on.

Gorsuch I have agreed with almost all his opinions, dissents including the times he voted with the liberal wing. in all those cases I think he got the correct result. With the notable exception of Bostick (?)

[Ed Grinberg]

I guess it'll only be fair if the new justice rules based on race.

[Sarcastr0]

I rest assured many on here will say she does regardless.

[WuzYoungOnceToo]

Just as you will insist that she doesn't, regardless.

[mtkesq]

A name I did not see in Lat’s article - Judge Leslie Gardner of Middle District of Georgia. She just turned 47 and is the sister of Stacey Abrams.

[Joe_dallas]

outstanding choice - NOT!

[Sarcastr0]

You know nothing about here except association.

[wolfefan]

That's all it takes for some folks.

[santamonica811]

Rachel Maddow's show put her on the medium-short list in last night's show.

[Moderation4ever]

I think it is a sad statement on our Court that we consider a judge too old for a Supreme Court appointment at 55 years. If a qualification is that you have to be young enough to sit on the court for 30 years then there is something wrong.

[F.D. Wolf]

Samuel Alito was 55 when he was nominated. Merrick Garland was 63. Of course, a 55-year-old could very possibly sit on the Court for 30 years.

[JJJSSS]

To be fair, Garland's age was seen as a virtue- it was part of what Obama hoped would get him confirmed, that he would be unlikely to serve for very long if confirmed.

[Frank Drackman]

C'mon Man! Lizzy "Pokeahontas" is a "Woman of Color"(1/1024th Red) just check out her High Cheekbones (Man!)

[Archibald Tuttle]

Doesn't declaring that only black women need apply vigilante title VII of the 1964 Civil Rights Act?

[CJColucci]

No. Next question?

[F.D. Wolf]

Maybe, but even if it did, in that instance, it would be an unconstitutional usurpation of the President's Article II appointment power.

[Noscitur a sociis]

No, of course it doesn't.

[jst1]

Given that you don't need a vacancy,Trump and McConnell should have nominated another Justice for whenever the next vacancy occurred.

[Syd Henderson]

Which would have expired on January 20.

[John F. Carr]

Not expired, I think, but it could be disregarded by the new president. The Senate authorizes the President to fill a position. The Senate does not fill the position. When the President signs the paperwork, then the process is over.

In Massachusetts outgoing governor Jane Swift made a bunch of last-minute judicial nominations that were approved around the end of her term, but there was still some paperwork left. They were said to be of low quality and new governor Mitt Romney didn't want them on the bench. He signed their commissions anyway so as not to rock the boat.

[F.D. Wolf]

No, a nomination expires when the session of Congress ends, so there not even be an intervening presidential election. (Or even a Congressional election, if the Congress recesses, though its recent practice has been to meet in two continuous sessions, to deny the President recess appointments). So, for example, if Biden nominates someone, but there is no Senate vote before the new Senate takes office next January, then the nomination would lapse, and Biden would have to re-submit the nomination.

[Titus PUllo]

Biden should have said a women of "color" ..that way he could have looked at some very smart Italian American women who would be find additions to the SC and send a message on DIE. Italians are about 40% of the US population so should be 40% of the court.

[Holden C]

Section 230 of the CDA is nothing more than state-sponsored cyber-terrorism. The USA has become a country that uses "liberalist" nostrums (like the ones peddled by Eugene Volokh) to harm citizens and encourage cyber-stalking and cyber-terrorism.

According to Eugene Volokh (EV), the USA would be a better nation if:

1. People are allowed to post naked pictures of others online as a form of revenge, because Eugene Volokh views these postings as "valuable free speech."

2. Stalkers should be able to post private information to torment victims and control their lives online, even when the victims have done nothing wrong to the stalkers, and the stalkers are stalking out of mental illness or desire for control. Eugene Volokh views the cyberstalker's crimes as "precious free speech."

3. Maliciously doxing someone for the intent of harassing them online should be legal, and even celebrated, as Eugene Volokh views this as "precious free speech" that the "public just needs to know." No consideration to the victim or the malice of the harasser.

Is this the world you want to live in? Where a total free-for-all occurs online with no legal accountability and no civility? Apparently, Eugene wants it. More likely than not, he is paid by Google to peddle this dangerous "neoliberalism" because he gets paid behind the scenes as a form of bribe by Big Tech.