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February 13, 2016

Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow

The title of this post is my effort to get started on a short list for Prez Obama who would be, I think, wise to move quickly to seek to fill the new vacancy on the Supreme Court.  Attorney General Lynch, notably, has recently been confirmed by this Senate, and thus the confirmation process should be able to go quickly (though surely not smoothly).

Anyone else want to provide the Prez (or Senate leaders of anyone else) advice on this front?

February 13, 2016 at 06:39 PM | Permalink


Don Verrilli, Pam Harris

Posted by: Ian Bassin | Feb 13, 2016 6:41:17 PM

Due to the entirely dysfunctional senate, the republicans will block everything. If Jesus Christ was nominated, they would place a judicial hold /filibuster to determine whether he is for or against the right to bear arms and whether he will agree to build a fence along the Mexican border. Any one who thinks that a nomination will get through the senate is smoking some ganja.

I think all nominations are dead on arrival. Trying to get any nomination through the Senate would be more difficult at this point than getting the republicans to agree on Obamacare.

It is unfortunate that Congress is so full of extremist tea partiers and republicans, but it is what it is. Even Justice Scalia would be sad about the political nightmare about to explode....

Posted by: The Ghost of Justice Scalia | Feb 13, 2016 7:15:12 PM

I don't agree Ghost. I think the nomination process will be easier now that it is an election year. The Republicans want to show they can govern and failure to move a nominee will cut against that narrative. Besides, most of the kooks are in the House which has no say in the matter. It will get done.

Posted by: Daniel | Feb 13, 2016 8:40:54 PM

It will not get done. On a separate note, for those of you who were hoping for a cert grant in the acquitted conduct/relevant conduct case in the DC Circuit (cert will soon be filed), we just lost a vote. Justice Scalia was aching to get rid of that horrible practice and dissented in previous cert grant. What a pity.

Posted by: Long lost student | Feb 13, 2016 8:56:26 PM

@long lost

I just read McConnell's statement and I am astonished. It is political suicide. The only way the Republicans can strengthen their hand is to win both the Presidency and retain the Senate in 2017. That is unlikely. First, they have the most senate seats to defend. Second, there most popular nominee is a former Democrat (Trump). So how exactly can they get a better deal than they get now? Either way the odds are that a moderate (be it a moderate Dem or a moderate Rep.) gets the next vacancy.

Yertle the Turtle needs to move, not crawl, or they risk losing the Senate.

Posted by: Daniel | Feb 13, 2016 9:12:50 PM

"Tea Party conservatives such as Sens. Ted Cruz, R-Texas, and Mike Lee, R-Utah, appeared impressed as well. Cruz, who clerked with Srinivasan at the 4th Circuit Court of Appeals, quipped, "I am hopeful that our friendship will not be seen as a strike against you by some."


Posted by: Joe | Feb 13, 2016 9:13:00 PM

If it got done it certainly wouldn't be with Loretta Lynch, who is politicized and would probably be defeated in committee. I think it's conceivable a nominee like Patricia Millet or Sri Srinivasan would get through.

Posted by: Jay | Feb 13, 2016 9:30:42 PM

If I were Obama, I would even consider a Republican like Jay Wilkinson. Would still move the court significantly to the left, is old and likely not to stay more than a few years, and would be hard to resist confirming for a full year.

Posted by: Jay | Feb 13, 2016 9:43:24 PM

No way anyone gets approved.

The leader of the judiciary committee has already said he's going to block it.

The leader of the Senate has already said he'd block it.

The Dems don't have 50 votes to approve, and Rs are unified.

And it only takes 1 (Ted Cruz) to block via filibuster.

Obama could attempt a Constitutionally murky recess appointment.

Posted by: Abe P | Feb 13, 2016 11:39:57 PM

Obama has a constitutional responsibility to name a nominee. He should take a week or two to look at his list and find one who is moderately left of center and universally considered to be well-qualified.

At that point, the ball is in the Senate's court. The Senate might be able to stick with the current pledge not to hold hearings or a vote, but it will make Senators Grassley and McConnell look like obstructionists. I don't think Senator Grassley is currently vulnerable in this year's 2016 election, but Iowa is enough of a swing state that becoming front and center of a big political controversy in which he acts like a slave to the party leadership could make things a lot closer than the Republicans would like. At some point, the Republican unity would begin to crack.

Posted by: tmm | Feb 14, 2016 9:25:06 AM

The Republicans, who sued the government because President Obama was not doing his job to deport undocumented immigrants, are already proclaiming that the President should not do his job to appoint a replacement of Justice Scalia.

To quote Vonnegut: "So it goes."

Posted by: C.E. | Feb 14, 2016 4:40:47 PM

People forget that the people are far more angry at the Democrats and the GOP Establishment than at the conservatives. If the GOP allows Obama's pick, essentially Scalia's exact opposite (an extremist liberal), the people will go ballistic. Indeed, GOP senators running for relection in blue/purple states have been served notice by their constituents: Hold off on giving Obama a justice or face the wrath of the voters. The media in particular will not be able to help this time.

One note: Obama will be nominating someone whom he will claim, and that the media will overly project, as a "reasonable moderated." But it won't fly, as Obama has never gone soft at any level when he has had full control of the process.

Now, there is an off-chance that if Clinton/Sanders wins the presidency, and somehow the senate flips (extremely unlikely) to democrat, then the new administration will be able to pick their anti-Scalia after all, and Obama will be declared a genius for waiting. So it can go both ways.

Posted by: Eric Knight | Feb 16, 2016 12:41:34 AM

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