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Obama Nominates Merrick Garland for SCOTUS

Again, I don't think this is true at all. To the extent that a delay in appointments/confirmations significantly impedes the ability of the Supreme Court to function as an institution I think it would definitely be unconstitutional - maybe not justiciable, but certainly violating the clear implications in the Constitution that the Supreme Court must be a functioning branch of government and that any actions taken by other branches that prevent it from functioning would be a violation of separation of powers.

I am not convinced that leaving the Court at eight members for a significant period of time would constitute a constitutional violation, but there are definitely constitutional limits on what Congress or the President could do to prevent vacancies from being filled.

Additionally some ConLaw scholars believe that a nine-member Supreme Court has become so firmly established as an institution that it has become constitutionally mandated (i.e. that Congress no longer has the power to decrease or increase the number of members of the court as it did in the early days of the country). If this is true, then failing to confirm a ninth member within a reasonable time would also be a constitutional violation.

I'm no literalist of the Constitution by any means, but where in the Constitution is an order that if something is "firmly established as an institution...it...become constitutionally mandated?"
 
I'm not sure 4-4 ties necessarily favors the left. You'd have to look at the data more closely to figure it out. Although the many of the circuits lean left at present, it stands to reason that the Court has granted (and would have granted) cert. petitions from the right-leaning circuits like the Fifth Circuit.

E.g., think of the Immigration imbroglio that was affirmed by the Fifth Circuit 2-1.

Sure, but the Fifth (and Eighth) Circuits are outliers. Look at the contraceptive mandate cases: those went 7-1 in favor of the government in the Circuit Courts but the government was in danger of losing at the Supreme Court this term. Now, it will not lose. The price is that the contraceptive mandate may out in the Eighth Circuit but elsewhere that it will stay in place, and become more firmly entrenched, for now.

On immigration, it's not entirely clear that the Fifth Circuit has the power that it claims to issue a nationwide injunction. What happens when the government goes to a court in the Ninth or Second Circuits for a declaratory judgment that the executive order is constitutional?
 
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I'm no literalist of the Constitution by any means, but where in the Constitution is an order that if something is "firmly established as an institution...it...become constitutionally mandated?"


I believe Akil Amar is one of the ones who endorses this theory, and I believe the theory is that at this point it would constitute impermissible meddling by Congress in the way the Supreme Court operates in violation of separation of powers. There is at least some merit to the argument. For example, Congress cancelled the entire Supreme Court term in the year before Marbury v. Madison because it was concerned with how the Court would rule in that case, but few would suggest that Congress retains the power to do that today.

I haven't done a ton of reading on it, so I'm not 100% sure of the particulars
 
I'm not sure 4-4 ties necessarily favors the left. You'd have to look at the data more closely to figure it out. Although the many of the circuits lean left at present, it stands to reason that the Court has granted (and would have granted) cert. petitions from the right-leaning circuits like the Fifth Circuit.

E.g., think of the Immigration imbroglio that was affirmed by the Fifth Circuit 2-1.

The proof is kind of in the pudding on this too. If you look at the major 5-4 decisions in recent years, either way they've come out, the majority have been on cert from liberal results below. There is also the well-established truism that on average the Court does not grant to affirm. So with a previously conservative SCOTUS, that would mean granting to reverse liberal results in favor of conservative ones
 
Obama will nominate someone solid and the GOP will step all over themselves performing an unprecedented year long obstruction. The optics will be terrible for the GOP.

So much this. If the GOP actually put together a normal vetting process and voted on a nominee, it would show they're able to govern in at least one respect. Instead they fall all over themselves to declare their plans to obstruct and prove the Democrats' point for them (while providing another arrow in the quiver for opponents in those contested Senate seats).

It's incredibly similar to the "shut down the government to stop Obama" strategy, which worked out swimmingly.
 
Anyway, let's talk about potential replacements. Tom Goldstein of SCOTUSblog came out today with his prediction that Obama will nominate Paul Watford on the theory that the Senate won't confirm anyone anyway so the strategy will be to exact the biggest political price. Also under the theory that Obama will want to nominate a black justice.

I still tend to think that it will be Srinivasan because it's going to be tough for Republicans to make arguments against him that will be taken seriously by independent voters. The potential difference in the composition of the court is that Srinivasan is probably not as liberal as Watford so it would likely be less of a shift
 
What about Watford makes it a price?
 
What about Watford makes it a price?

He's black, is I think the main one. Keeping an Indian-American off the court doesn't have the same charged connotation.

Goldstein's theory is that Kamala Harris would be Obama's first choice but that she will turn it down because she's the favorite to win a Senate seat and set herself up for a potential presidential run. I also don't think Harris choice would be great because she's much easier to attack. She didn't go to an elite law school, or even one ranked in the top 40, she has no former judicial/academic experience, and she has been somewhat politically controversial in the past I believe.

Personally, I also cringe at the idea of a former prosecutor replacing Scalia. For all his shortcomings, he was one of the most consistent supporters of the rights of criminal defendants on the court and provided some crucial votes in favor of individuals against police infringements on their civil liberties.
 
I actually think Sri is the better political play since the Senate GOP has made it clear that any Obama nominee isn't going to get a vote. It looks a lot more obstructionist to refuse to give a guy a fair up or down vote (and it is harder down vote to cast if it actually came to it) who was confirmed 97-0 to the DC Circuit than a guy that was confirmed 61-34 to the Ninth.
 
I agree that Sri provides worse optics for the GOP. Kamala Harris is a lightning rod so that's a non-starter for sure IMO.
 
I don't know these folks at all so grain of salt. I don't see how opposing a black appointee enacts anymore of a price than stonewalling the black president or taking forever to confirm a black female AG.

Refusing to vote on the first Asian nominee who was previously confirmed 97-0 seems like it would come with a bigger price.
 
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I'm no literalist of the Constitution by any means, but where in the Constitution is an order that if something is "firmly established as an institution...it...become constitutionally mandated?"


With an interpretive theory that accepts a "living constitution," it can mean anything you want it to.
 
I believe Akil Amar is one of the ones who endorses this theory, and I believe the theory is that at this point it would constitute impermissible meddling by Congress in the way the Supreme Court operates in violation of separation of powers. There is at least some merit to the argument. For example, Congress cancelled the entire Supreme Court term in the year before Marbury v. Madison because it was concerned with how the Court would rule in that case, but few would suggest that Congress retains the power to do that today.

I haven't done a ton of reading on it, so I'm not 100% sure of the particulars

There is zero merit to the argument that Congress is precluded, regardless of the circumstances, from changing the number of SCOTUS justices. The reason Congress can't abolish the SCOTUS -- either directly or indirectly -- is that the constitution says that the judicial power of the US "shall be vested in one Supreme Court." Other than saying the SCOTUS has a Chief Justice, it says nothing at all about the number of justices.
 
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There is zero merit to the argument that Congress is precluded from changing the number of SCOTUS justices.

I mean that's your opinion but people with far more Constitutional bona fides than you disagree
 
With an interpretive theory that accepts a "living constitution," it can mean anything you want it to.

Sure I guess it can, but I find that far more favorable than letting the dead hand govern us. Obviously people disagree.
 
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