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Advice & Consent 018: What's Next?

Welcome to the Advice & Consent Podcast: news views and insight on the future of the supreme court. Shownotes and more are available at scotuscast.com. Email us at advice@scotuscast.com…. Check us out on Twitter and Facebook too. I’m Tim Mooney, joined by the ragtag gang of the usual suspects… Adam Shah and Lena Zwarensteyn. Dan Roth is currently at a cruising altitude of 30,000 feet and will return in a future episode!




Trump’s victory has enormous consequences for the Supreme Court (WaPo)


This just became a very different podcast. What’s next?


Merrick Garland? Any closing thoughts on what the GOP stonewall meant and means going forward?




  1. Where the heck was President Obama if he really wanted to get Garland confirmed? Where the heck was Hillary Clinton if she thought a court that promoted equality and working people’s rights was important?


I’ve discussed this before, but on the stump in 2004, then-President Bush mentioned federal judges in EVERY SINGLE SPEECH. Even Cheney did it. Neither Bush nor Cheney were even lawyers, much less constitutional scholars. The media covered judges all the time in 2004. People voted on the issue. If you NEVER mention the issue, guess what? Your preferences won’t make a difference. I’ve added an appendix to the shownotes with links to each speech in which George Bush mentioned judges during the last 4 days in October 2004 alone (I originally planned to link to speeches for the full month; when it turned out that there were five or more such speeches each day, I limited it to a week and then just four days.  It’s incredible how often Bush spoke about judges).


How many times did President Obama mention judges this year? Hillary Clinton?

As for what’s next, [looking at what the Court did today provides some answers]. The Court has routinely been turning down cases that conservative justices usually vote to hear, such as cases involving prosecutors appealing pro-criminal defendant decisions by state supreme courts and lower federal courts to avoid both 4-4 splits and emboldening pro-rights of the accused advocates. I suspect the Court will start granting cert on those cases (maybe as early as tomorrow, or maybe just holding those cases by one week as is their current practices and then granting cert next week) on the hope that even if the Court splits 4-4, by the end of the term, a ninth justice will be on the bench and they can order reargument for Fall 2017.


  1. To answer a listener question (shout-out to Marla Wilson) President Obama has one last chance to fill the vacancy. He can give a recess appointment to someone before the new Congress is sworn in on January 3, 2017. That’s true even if the old Congress is in session continuously and gavels the new Congress into session instantaneously. A justice appointed that day would serve at most for one year, until January 3, 2018 (I’m not sure whether it would expire sooner if the Senate adjourned the first session of the next Congress sine die on an earlier date).  There is some question about whether it is constitutional to give a recess appointment to a federal judge (who is supposed to serve for life), but 309 federal judges have received recess appointments, a practice that began with George Washington. President Obama has not recess-appointed any federal judges, but both President Clinton and President George W. Bush did so. Nine SCOTUS justices have received recess appointments, but none since President Eisenhower gave recess appointments to Earl Warren, William Brennan, and Potter Stewart. For more information, see http://www.senate.gov/reference/resources/pdf/RL31112.pdf


Lena: McConnell won. We let him.


I hate to predict because I don’t want people to disengage. I want people to demand accountability. President Obama is STILL THE PRESIDENT. And we’re still paying our Senators to do their job. They should give him a hearing. They should consider the 54 nominees pending. We have too much to do already.


In the future, I have no idea what this means for future nominations. We have a new normal.


Tim: I continue to be appalled with what Republicans did. President Obama was disrespected. The American presidential vote in 2012 was dishonored. The GOP will just run the clock out… no hearings and no votes.


Look, I’m not a Mitch McConnell guy. Like, at all. But listen to this: “I think it’s always a mistake to misread your mandate, and frequently new majorities think it’s going to be forever. Nothing is forever in this country . . . We’ve been given a temporary lease on power, if you will. And I think we need to use it responsibly.”


So, there’s that.


Assuming an opening remains on the Court, what’s the timeline for President-Elect Trump’s nomination?


Lena: Day one. Probably sooner we’ll have an idea of the top few contenders.


Adam As soon as possible. Along with repealing Obamacare, this is something open, tangible, and very high profile that he can give to the base.


Tim: I think there’s a likelihood that the nominee will be formally named before the end of January and possibly leaked before inauguration as a test balloon.


Who do you think will be picked?


Dan from Oakland writes in: “FFS he’s going to put Ted Cruz on the Supreme Court.”


Lena: We already have a list. He’s shown his hand. I’m still sticking with 11th Circuit Court of Appeals Judge William Pryor.


Adam I think he puts the people on his list, plus Omarosa and Meat Loaf, through an Apprentice-style process to select the winner. On a serious note, I think the co-panelists have made fine picks, but we need to think in terms of at least three new justices on the Court, not just one (no president has put three new people on the Court since Reagan and no one has put 4 on the bench since Nixon (unless you consider Associate Justice Rehnquist and Chief Justice Rehnquist to be different people)). I don’t think Justice Ginsburg makes it until 2020 and it’s a slim possibility that Justice Breyer doesn’t either. Clarence Thomas will be in his 70s by 2020 and has Scalia’s death and Ginsburg’s egregious decision not to resign staring him in the face. I actually think that Anthony Kennedy is very unlikely to resign. He knows that without a liberal replacement for Scalia, the Court is 1 vote away from undoing the reason he’ll be in the history books, gay rights.


Tim: Alabama Senator Jeff Sessions. He was an early supporter and one of the handful of names the President Elect specifically mentioned in the victory speech… as I said on a previous show, I think he checks all the boxes for Trump and the right.


Filibuster? Nuclear option?


Adam: Dems will decide whether to conciliate or to block. Don’t know right answer.


Tim: I don’t know how I feel about a filibuster – I’ve never been comfortable with them in the context of nominations (although you can make an argument there’s a difference between lifetime appointments and those that aren’t). I also don’t know how I feel about tit for tat, but it’s clear to me that a vacancy on the Court in 2020 is subject to what I will now call the Garland Rule. I think it’s always been a bullshit position, but I wouldn’t blame Senate Dems from throwing it out there as a make-up call for President Obama. Which is ridiculous.


Lena: Our constitutional democracy is threatened: on process and substance.


Programming note: We’ll continue the show through the nomination and confirmation process.








https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041031-7.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030.html [weekly radio address]





https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-15.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-14.html [Cheney]

https://georgewbush-whitehouse.archives.gov/news/releases/2004/10/20041030-13.html [Cheney]