SCOTUS: First Monday in October


The unprecedented Senate Tea-Publican “blockade” of President Obama’s nomination of Judge Merrick Garland to fill the vacancy created by the death of Justice Antonin Scalia will not be resolved before Election Day. Supreme Court vacancy watch Day 229: Mitch McConnell’s abject failure as a civil servant:

It’s Friday, September 30, and Day 229 since Justice Antonin Scalia died and Mitch McConnell decided no nominee would get any Senate attention: No meetings, no hearings, no votes. It’s also Day 198 since Merrick Garland was nominated by President Obama to fill that vacancy.


It’s now day 231, and the Washington Post reports on the start of the Supreme Court’s new term. Supreme Court to begin new term short-handed as its ideological balance hinges on fall vote:

The Supreme Court’s new term begins Monday with the focus not on the court’s docket but on the court itself and a future that will be defined by the presidential election.

For the first time in decades, there will be only eight justices, not nine, to begin the new term. Also absent are the kind of big-ticket cases — involving immigration reform, affirmative action, abortion, same-sex marriage and the Affordable Care Act — that in recent years have catapulted the Supreme Court to the fore of American civic life.

Instead, the short-handed court has assembled a docket of more-modest cases — albeit ones that touch on contemporary controversies such as the role of race in criminal justice and politics, free speech and perhaps the treatment of transgender students.

Of far greater consequence is the fate of the court’s ideological balance. And on that question, the court finds itself like the rest of the country: waiting to see what happens on Nov. 8.

It has been nearly a half-century since a presidential election promised such an immediate impact on the court. Senate Republicans have refused to take up President Obama’s choice of Judge Merrick Garland for the seat of the late Justice Antonin Scalia, arguing that a newly elected president should fill that vacancy.

As of Sunday, Garland has been waiting 200 days for the Senate to act on his nomination. Obama tapped Garland a month after Scalia’s death in February. But Senate Majority Leader Mitch McConnell (R-Ky.) has been adamant that the Senate will not even hold a hearing on Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.

The next president’s impact on the court could go well beyond that one choice and be felt for decades. Three of the current justices are now older than other members who recently retired from the court, suggesting more departures to fill.

As I posted earlier this year, SCOTUS: the defining issue in the 2016 election:

Following up on yesterday’s post about the U.S. Supreme Court, attorney Rick Hasen has written this longread for TPM, which is well worth your time to read. It begins:

The future composition of the Supreme Court is the most important civil rights cause of our time. It is more important than racial justice, marriage equality, voting rights, money in politics, abortion rights, gun rights, or managing climate change. It matters more because the ability to move forward in these other civil rights struggles depends first and foremost upon control of the Court. And control for the next generation is about to be up for grabs, likely in the next presidential election, a point many on the right but few on the left seem to have recognized.

When the next President of the United States assumes office on January 20, 2017, Justice Ruth Bader Ginsburg will be nearly 84, Justices Antonin Scalia and Anthony Kennedy will be over 80, and Justice Stephen Breyer will be 78. Although many Justices have served on the Court into their 80s and beyond, the chances for all of these Justices remaining through the next 4 or 8 years of the 45th President are slim. Indeed, the next president will likely make multiple appointments to the Court.

The stakes are high. On non-controversial cases, or cases where the ideological stakes are low, the Justices often agree and are sometimes unanimous. In such cases, the Justices act much like lower court judges do, applying precedents, text, history, and a range of interpretative tools to decide cases. In the most controversial cases, however—those involving issues such as gun rights, affirmative action, abortion, money in politics, privacy, and federal power—the value judgments and ideology of the Supreme Court Justices, and increasingly the party affiliation of the president appointing them, are good predictors of each Justice’s vote.

A conservative like Justice Scalia tends to vote to uphold abortion restrictions, strike down gun restrictions, and view the First Amendment as protecting the right to spend unlimited sums in elections. A liberal like Justice Ginsburg tends to vote the opposite way: to strike down abortion restrictions, uphold gun laws, and view the government’s interest in stopping undue influence of money in elections as justifying some limits on money in politics. This to not to say it is just politics in these cases, or that these Justices are making crassly partisan decisions. They’re not. It is that increasingly a Justice’s ideology and jurisprudence line up with one political party’s positions or another because Justices are chosen for that very reason.

You should read Hasen’s entire post.

Conservatives and the far-right are singularly focused on the Supreme Court, liberals and progressives should be equally as focused. See the New York Times‘ legal columnist Linda Greenhouse, Pondering the Supreme Court’s Future, and David Leonhardt, A Liberal Supreme Court.

You are not just voting for president this November. You are voting for the direction of the U.S. Supreme Court which will determine the direction of this country for a generation to come, long after the president you elect has left office.  And don’t forget to vote out the Tea-Publican Senators engaged in this unconstitutional and undemocratic “blockade” of judicial nominations, i.e., John McCain.


  1. It has been my suggestion from the time pea brains like McConnell, McCain and Flake (who is the worst hypocrite because he attempts to sound reasonable, but ACTS like the worst ones in the Senate) have denied their duty to “advise and consent” that they have abrogated their responsibility under the Constitution. Therefore Garland should just show up and take his seat on the court. Who could stop him? McConnell on the steps of the Court like Wallace on the steps of the University of Alabama? This would be a reasonable AND legal step by Garland. Its not like Obama is going to send US Marshalls to stop him. If the Senate refuses their duty, then it is waved, and the seat is his, by default. Their obstruction has never occurred in US history, so Garland’s action, to just take the seat would be equally unprecedented, but within his rights, when the Seanate has waved their duty. Remember McConnell’s whine about “up or down votes”. Well his has waved his bodies duty under the Constitution.

    • How awesome would that be?

      Garland shows up to work, the GOTeaP freaks out, goes to court, and ends up on trial themselves for Treason.

      Because they are committing Treason, they took an Oath to uphold the US Constitution, and their refusal to do so is Treason.

      You’d think the Oath Keeper’s would be mobilizing to arrest and lock up the lawless McCain, McConnell, and Flake.

      Oh, wait, it’s not about following the Constitution, is it? It’s about the Black Dude in the White (Man’s) House.

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