Can Obama Slip a Nominee Past the Senate? It’s Complicated

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Over the next week or two, you will hear different theories how Obama can bypass the Senate and how the Senate can stop Obama.  Should we be worried or reassured?  There is no simple answer, but I will walk you through as much as I can.  Through the Washington Post and The Thinker magazine, you may have hear of  S.RES. 334.  That is a resolution passed by the Senate aimed at preventing Eisenhower from making recess appointments to the Supreme Court during his final year in office.

For a resolution to become binding, the president must sign off on it.  Since the resolution was meant to prevent him from using his power to appoint an interim judge to the high court, it’s unlikely he signed it.  Let me say, I was unable to confirm or deny that fact.  The bottom line is that whether it’s binding or not, it’s irrelevant.  Both parties employ a method that prevents presidents from making recess appointments.  They don’t have a full recess.  One of the parties leave some members who meet every day in Chambers, meaning no recess exists.

Seating a new judge through usual procedures (President nominating a person and the Senate confirming or denying them) places all the power in the majority party of the Senate.  Mitch McConnell could just set the confirmation hearing so late in the year that no confirmation would be possible.  But then you’d have to trust his weak spine.  He could simply not bring the nomination up for a vote.

Should the matter be put up for a vote, it would require only four defections to give Obama the win because the vote would be 50-50 and the vice president breaks all ties.  That is possible, but again, the majority has the advantage.  The nomination could be filibustered.  That would require 60 votes instead of just 51.  Democrats would need 14 defections, which would be unlikely.

The democrats could try to use public opinion to scare those up for reelection this year, but…………….  The truth is there are just a couple of arguments that could use.  They could claim that republicans are playing politics if they delay the confirmation hearings.  But that would not set a precedent.  In 1987,  the Senate Judiciary Committee chairman delayed the confirmation of Robert Bork to prevent Reagan from adding a staunch conservative to the court.  And who was the  the Senate Judiciary Committee chairman in 1987?  Sen Joe Biden.

Sen Chuck Schumer, who is set to replace Harry Reid in 2017, made the following statement:

“You know, the kind of obstructionism that [Senate Majority Leader] Mitch McConnell ‘s talking about, he’s hearkening back to his old days.  In 2010, right after the election or right during the election, he said, ‘My number-one job is to defeat Barack Obama,’ without even knowing what Barack Obama was going to propose. Here, he doesn’t even know who the president’s going to propose and he said, ‘No, we’re not having hearings; we’re not going to go forward to leave the Supreme Court vacant at 300 days in a divided time.’”
Yet in 2007, the very same Chuck Schumer gave a speech at  a convention of the American Constitution Society, Schumer said:

“We should reverse the presumption of confirmation.  The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”

So, the same Chuck Schumer who said 300 days is too long to wait to appoint a judge had actually advocated for s delay that was 7 months longer than we have now.  Schumer’s delay did not become necessary since no justices needed to be replaced before George W Bush left office.

So, the simple answer is that republicans can stop Obama as long as their spines don’t go soft.

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