POLITICAL MOJO How the GOP Created Frankentrump 26FEB16

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We're a nonprofit, and we rely on support from readers. Mother Jones | 222 Sutter, San Francisco, CA 94108

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We're a nonprofit, and we rely on support from readers. Mother Jones | 222 Sutter, San Francisco, CA 94108

7 Things To Know About Presidential Appointments To The Supreme Court & Tell the Senate: Don't block Obama's Supreme Court nominee 14&15FEB16

JUSTICE antonin scalia isn't even cold in his grave and the repiglicans are demanding Pres Obama not nominate a replacement and threatening to block anyone he nominates if he does. How's that for a preview of the kind of government we will have if one of the repiglicans is elected? They are all about the US Constitution on the campaign trail and then all hot and bothered to block the President from fulfilling his constitutional responsibilities. The Appointment Clause of the Constitution (Article II, Section 2, Clause 2) states that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court."
Check out this from +NPR and then please sign the petition from UltraViolet demanding the US Senate hold a vote on whoever Pres Obama nominates to the court.

7 Things To Know About Presidential Appointments To The Supreme Court

Updated February 15, 2016 9:44 AM ETPublished February 14, 2016 1:08 PM ET

The Appointment Clause of the Constitution (Article II, Section 2, Clause 2) states that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court."

That "advice and consent" role has meant different things in U.S. history. In the early days of the republic, nominees to the court got a passing glance. The Senate acted speedily, within about a week, from the date of nomination to a vote. But there was a marked difference after 1967, the year Thurgood Marshall was nominated to be the first black Supreme Court justice. Post-1967, the median wait time for a presidential nominee has ballooned to more than two months. (Current members of the court faced an average of 71 days. That includes Antonin Scalia, who died Saturday.)

And it's very possible, if not probable, that Obama's nominee to replace Scalia — and he is pledging to fulfill his "constitutional responsibilities" to do so — will break the record for the longest wait for a vote in history. The fight to replace Scalia could be historic, possibly resulting in the longest vacancy on the court since it went to nine justices in 1869.

Republicans, who currently control the Senate, have said they don't think Obama should nominate anyone in this election year — even though Obama still has 11 months in office. With that, here are seven things to know about the presidential appointment process:

1. The longest wait for a nominee, from the time it was received to the time it got a vote, was 125 days for Louis D. Brandeis in 1916. (Obama has 341 days remaining.) Brandeis was ultimately confirmed, but only after 19 public hearings. Public hearings, by the way, were new to the process 100 years ago. Before Brandeis' nomination, the Senate had never before held public hearings we're all now so used to. What's more, only once — in 1873 for the nomination of George H. Williams to be chief justice — is there a record of the Senate having conducted even closed, private hearings, according to the Congressional Research Service. Williams' nomination was withdrawn a month after those hearings. (See table at bottom of this post for a full list of longest wait times.)

2. The longest vacancy on the Supreme Court was 27 months between the Tyler and Polk administrations before the Civil War. Tyler, derided as "His Accidency," because he was the first vice president elevated to the White House, also holds the distinction of a record eight nominees rejected or withdrawn.

3. The longest vacancy since the court went to nine justices in 1869 was 391 days. After Abe Fortas resigned from the court in 1969, Richard Nixon's first two attempts to replace him were narrowly rejected in November of 1969 and April of 1970. That means if Obama doesn't get a nominee through, the next president would have until March 12, 2017, before the vacancy record would be broken. (For a list of the top 10 vacancies, check out Time's charthere.)

4. There have been other nominees who got hearings in presidential years. It wasn't until 1868 that the Senate determined that all nominees be referred to the Senate Judiciary Committee. Sen. Chuck Grassley, R-Iowa, currently heads that committee. His office put out a statement Saturday saying no one in 80 years has been confirmed in a presidential year. That wasn't true. Anthony Kennedy, currently serving on the court, was approved in February 1988 by a 97-0 vote. Grassley's office walked that back later, saying it meant nominated and confirmed. (Kennedy was nominated in November 1987.)

The year 1968 also keeps coming up. That's because Lyndon Johnson, who was on his way out as president that year, nominated Abe Fortas to be chief justice and Homer Thornberry to a court vacancy. Johnson withdrew their nominations a month before that year's general election after 22 hearings between them. Fortas, who had been appointed to the court three years earlier, nearly became chief justice. A cloture motion was rejected by two votes. His nomination was withdrawn three days later. Despite almost a dozen public hearings, Thornberry didn't even get a vote in committee. Both, though, did get hearings within two weeks of their nominations in June 1968.

Richard Nixon went on to win the presidency in November and got four nominees through, including one for chief justice.

5. Dwight Eisenhower made a recess appointment to the court in a presidential year. Eisenhower appointed William Brennan to the court through a recess appointment. (Can you imagine Obama even trying to make a recess appointment to the court now?) Brennan was confirmed for a permanent appointment to the court in March of the following year (after Eisenhower won re-election). There have actually been a dozen recess appointments; all but one eventually got permanent appointments. Nine of the 12 took place before the Civil War. All three after the Civil War were made by Eisenhower. He did it one more time in 1958 with Potter Stewart. Stewart also eventually got a permanent slot on the court, but it was one of the longest waits for a nominee — about three-and-a-half months.

6. The last appointment nominated and confirmed in an election year was Stanley F. Reed of Kentucky in 1938.That's where Grassley's office gets the 80-year figure. It took a speedy 10 days for the Senate to confirm Reed.

7. The last nominee outright rejected was Robert H. Bork in 1987. He faced 12 hearings and didn't get one until 70 days after his nomination. There have been about a dozen nominees who were outright rejected; 124 of the 160 nominated were confirmed, according to the Congressional Research Service. The fastest anyone has been rejected was five days. That record belongs to George Washington's nomination of John Rutledge to be chief justice in 1795. Rutledge is the earliest rejection of a nominee (by a 14-10 vote and also the only recess appointment to be rejected). In 1811, Alexander Wolcott was the fastest non-justice to be rejected. It took just nine days for the Senate to dismiss Madison's nominee.

Longest waits for presidential nominees to the Supreme Court (from receipt in Congress to result):

125 days — Louis D. Brandeis (Wilson), confirmed 47-22, June 1, 1916. (19 public hearings, first was 12 days after nomination)

108 days — Robert H. Bork (Reagan), rejected, 58-42, Oct. 23, 1987. (12 public hearings, first was 70 days after nomination)

108 days — Potter Stewart (Eisenhower), confirmed 70-17, May 5, 1959, after recess appointment.

100 days — Abe Fortas (Johnson), withdrawn after being nominated to be chief justice, Oct. 4, 1968. (11 public hearings, first was 15 days after nomination)

100 days — Homer Thornberry (Johnson), withdrawn, Oct. 4, 1968. (11 public hearings, first 15 days after nomination)

99 days — Clarence Thomas (H.W. Bush), confirmed 52-48, Oct. 15, 1991. (11 public hearings, first was 64 days after nomination)

96 days — Reuben H. Walworth (Tyler), withdrawn, June 14, 1844.

92 days — Clement F. Haynsworth Jr. (Nixon), rejected 55-45, Nov. 21, 1969. (8 public hearings, first was 26 days after nomination)

89 days — William H. Rehnquist (Reagan), confirmed to be chief justice 65-33, Sept. 17, 1986. (4 public hearings, first was 39 days after nomination)

87 days — Elena Kagan (Obama), confirmed 63-37, Aug. 5, 2010. (4 public hearings, first was 49 days after nomination)

85 days — Antonin Scalia (Reagan), confirmed 98-0, Sept. 17, 1986. (2 public hearings, first was 42 days after nomination)

82 days — Samuel Alito (W. Bush), confirmed 58-42, Jan. 31, 2006. (5 public hearings, first was 60 days after nomination)

79 days — Melville W. Fuller (Cleveland), confirmed 41-20, July 20, 1888. (No recorded hearings)

79 days — George Harrold Carswell (Nixon), rejected 51-45, April 8, 1970. (5 hearings, first was 8 days after nomination)

78 days – Thurgood Marshall (LBJ), confirmed 69-11, Aug. 3, 1967. (5 public hearings)

Source: Congressional Research Service

Tell the Senate: Don't block Obama's Supreme Court nominee

Within hours of Justice Antonin Scalia's passing, top Republicans announced plans to block ANY of President Obama's nominees for the Supreme Court. They think we should wait until after the election for the next president to choose who fills Scalia's seat.¹

Can you imagine Donald Trump or Ted Cruz picking the next justice? The idea is positively terrifying--to say nothing of the thought that landmark abortion and birth control cases will be decided this spring without President Obama's nominee on the court.² President Obama needs to be able to do his job and appoint a replacement. The stakes are too high for anything else.

Republicans are watching to see how the country reacts to their declaration. Before their ideas take hold, we need to speak out loudly, and show them in no uncertain terms that the only acceptable way forward is for them to do their jobs and consider the current president's nominee. 

Tell the Senate: Don't block President Obama's Supreme Court nominee.

Sign the petition

One of the most important jobs the president has is appointing Supreme Court justices. The Senate's job is to be consulted and to approve or reject--not summarily refuse to even consider the nominee.

But here we are, with Republicans categorically rejecting any nominee, before Obama even announces his pick. They're gambling that one of their far-right, anti-woman candidates will win the presidential election in November. Want a sense of what that means? Trump's already on the record saying he thinks Bill Pryor, who called Roe v. Wade "the worst abomination in constitutional law in history," is someone worth considering for the Supreme Court.³

President Obama has pledged to move forward quickly, and he is going to need our help to get his nominee through the Senate. The first step is getting Republicans to back off their high horse and do their jobs to approve a new justice.

Add your name.
Thanks for speaking out. 

--Nita, Shaunna, Kat, Karin, Adam, Holly, Kaili, Kathy, Onyi, Susan, Clarise, Anathea, Audine, Ryan, Shannon, Megan, Kaytee, and Libby, the UltraViolet Action team

Sources:

1. Conservatives Quickly Refuse Any Obama Court Replacement After Antonin Scalia's Death, Huffington Post, February 13, 2016

2. The Supreme Court Is About To Consider A Case That Could End Roe V. Wade, ThinkProgress, November 10, 2015

3. Who is Bill Pryor? Donald Trump mentions former Alabama Attorney General as possible Supreme Court nominee, AL.com, February 13, 2016

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The last honest conservative: Meet the brilliant Ronald Reagan appointee making Antonin Scalia’s life very difficult 2SEP14

WHO knew? Thank God there are some well placed judges who understand justice is not determined by the masses. From +Salon .....
Tuesday, Sep 2, 2014 05:17 PM EST

The last honest conservative: Meet the brilliant Ronald Reagan appointee making Antonin Scalia’s life very difficult

On three high-profile cases bound for the Supreme Court, Judge Richard Posner has seen through right-wing blather

Eric J. Segall

Richard Posner, Antonin Scalia (Credit: Reuters/John Gress/Brendan Mcdermid)

Judge Richard Posner has written nearly 40 books, hundreds of articles and thousands of judicial opinions. He is, by far, the most cited legal scholar alive today (probably ever). Nominated by Ronald Reagan, he sits on the United States Court of Appeals, just below the Supreme Court. He has publicly feuded with Justice Antonin Scalia over how judges actually decide, and should decide, cases. And, over the last year, he has spoken truth to power in three high-profile cases all likely to be decided by the Supreme Court.
On issues of abortion, same-sex marriage and religious objections to Obamacare, Posner said exactly what needed to be said with honest, unequivocal and, to some perhaps, startling clarity.
The University of Notre Dame didn’t want to provide certain forms of required contraception to its students and employees so it went to court seeking a religious exemption. The bizarre thing about the case is Notre Dame was already exempt. What it wanted was not to fill out the form that would have guaranteed the university an exemption. Notre Dame claimed, to most people’s disbelief, that filling out the short form and asking for the exemption was itself a substantial burden on its religious exercise.
Posner would have none of it. At the oral argument, he took a harsh tone with the lawyer for Notre Dame who refused again and again to answer directly how filling out a piece of paper could possibly be a “substantial burden on religion.” Becoming more and more frustrated, Posner eventually asked the lawyer to “stop babbling,” and “stop fencing,” eventually warning him that “if you don’t cooperate with me, I’m not going to let you continue your argument.” The judge’s frustration stemmed from his perception that Notre Dame’s claims had no merit, and the lawyer was simply bobbing and weaving.

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Eventually, Notre Dame lost (the court of appeals uses three-judge panels) and the final opinion written by Posner said this: “The novelty of Notre Dame’s claim–not for the exemption, which it has, but for the right to have it without having to ask for it–deserves emphasis … What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths … The process of claiming one’s exemption … is the opposite of cumbersome.  It amounts to signing one’s name and mailing the signed form to two addresses.”
From the oral argument through the decision, Posner seemed shocked at the idea that Notre Dame would challenge an exemption given to it by the federal government on the basis that it, gasp, had to ask for it. He couldn’t be more right.
A few months later, Posner, again along with two other judges, reviewed the validity of a brand-new Wisconsin law requiring doctors who perform abortions to have admitting privileges at nearby hospitals. The law, if valid, would make it much more difficult for clinics in Wisconsin to provide abortion services because, of the four clinics in the entire state that perform abortions, two would have been shut down.  Although the case came to the court on a preliminary motion (an emergency stay had been granted by the lower court), Posner took the opportunity to demonstrate why he thought the plaintiffs would eventually prevail.
In affirming the stay, Posner noted that “no documentation of medical need for such an admitting privileges requirement was presented to the Wisconsin legislature when the bill that became the law was introduced.” He also noted that no “other procedure performed outside a hospital, even one as invasive as a surgical abortion (such as a colonoscopy) …  and even if performed when the patient is under general anesthesia … is required by Wisconsin law to be performed by doctors who have admitting privileges at hospitals within a specified, or indeed any, radius of the clinic at which the procedure is performed.”  Posner added that the risks of colonoscopies are three to six times greater than the risks of abortions (yet doctors can perform them in outpatient centers without having admitting privileges), and that, based on a report by the state, out of 1,192 abortions that were reported, there were only 16 complications, a rate of less than 1 percent.
Throughout the opinion, Posner implied, though didn’t go as far as to conclude, that the obvious purpose of the law was not to further women’s health but simply to make abortions more difficult to obtain. For example, on the issue of the timing of the law, he said “it has been 40 years since Roe v. Wade … was decided, legalizing (most) abortion throughout the United States, and it could not have taken the State of Wisconsin all this time to discover the supposed hazards of abortions performed by doctors who do not have admitting privileges at a nearby hospital.”
Posner saw through the litigation and the alleged health benefits of the admitting privileges law. His opinion will make it virtually impossible for Wisconsin to win this case if and when it returns for a final disposition, and rightfully so.
Finally, Posner was recently one of three judges to hear oral argument in a lawsuit challenging Wisconsin and Indiana’s ban on same-sex marriage. Although the case has not yet been decided, there is no question how Posner will vote. When the lawyer for Wisconsin justified the ban based on “tradition,” Posner responded by saying “It was tradition to not allow blacks and whites to marry — a tradition that got swept away.” He also said the ban stems from “a tradition of hate … and savage discrimination” against same-sex couples.
During the argument, the state argued that the purpose of the ban had something (ill-defined) to do with procreation and biology. Posner responded, “It’s arbitrary. You’re allowing all these sterile people to get married. Why are you doing that if you’re so concerned with procreation? Why do you let them?”
Posner also asked the state’s lawyer about the harm to children of same-sex couples denied benefits that children of opposite-sex couples receive and further chided the lawyer by saying that “You are concerned with the unfortunate children produced by accidental births … many of these (unintended children) are adopted by same-sex couples, and these children will be better off if their parents can marry, no? Isn’t that obvious?”
Posner thought it was “obvious” that filling out a form cannot possibly be a substantial burden on religion, that the state of Wisconsin and Indiana didn’t care one bit about women’s health when it decided to require doctors who perform abortions to have admitting privileges at hospitals, and that bans on same-sex marriage have little to do with permissible concerns Wisconsin may have about marriage and children and everything to do with unlawful and arbitrary discrimination. As a matter of law he is right about all three cases. As a matter of politics, we will have to wait until the Supreme Court decides to have our final answers.

Eric Segall is the Kathy & Lawrence Ashe Professor of Law at Georgia State University College of Law. He is the author of "Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices are Not Judges" and has written numerous law review articles on constitutional law and other legal topics. He appears regularly on "StandUp With Pete Dominic" on XM Radio and tweets at @espinsegall.

More Eric J. Segall.

Scalia Slaps Down GOP’s Tentherism from THINKPROGRESS 25JAN11

MORE disappointment for tea-baggers and right wing fanatics from the gop and arch conservative Supreme Court Justice Scalia tells them flat out they are wrong on the constitutionality of federal spending......these fools are finding out it is a lot easier to stand on the outside and run their mouths than actually govern, and they haven't been impressive in their inability to govern so far........this from ThinkProgress....
Yesterday, conservative Justice Antonin Scalia spoke to a gathering of mostly-Republican lawmakers about separation of powers under the Constitution. During that gathering, Scalia was asked to embrace one of the Tea Party’s pet constitutional theories — but his response did not go well for the far right:

“The question of earmarks came up, whether or not the constitutionality of earmarks would be considered constitutional [sic],” Bachmann told reporters after the seminar. [...]
“It’s up to Congress how you want to appropriate, basically,” Scalia told the members, according to Rep. Louie Gohmert (R-TX). “He pointed out historically, like when Jefferson was president, [Congress] said here’s a big pot of money, you decide where it goes, and Jefferson ended up paying up a big hunk of it to the Barbary Pirates.”
“I think the fairest thing to say was he took it for granted they were constitutional,” said Rep. Jerrold Nadler (D-NY) — one of a small handful of Democrats in attendance. “I don’t think there was any question. I can’t see how you can make an argument that they’re not Constitutional — Congress is the appropriating body.”

Although Scalia was asked about earmarks, his answer is nothing less than a wholesale repudiation of the right’s tenther vision of the Constitution. After President Obama took office, right-wing lawmakers suddenly began claiming that the Constitution places strict limits on how Congress is allowed to allocate federal funds. Sen. Mike Lee (R-UT) claims that Social Security, Medicare and federal disaster relief are all unconstitutional. Sen. Tom Coburn (R-OK) believes Pell Grants, federal student loans and all other federal education programs are unconstitutional. And the GOP’s Pledge to America embraces tenther rhetoric — suggesting the entire party could agree with Lee and Coburn.
Yet, as Scalia indicates, tentherism is baseless. Because Article I of the Constitution gives Congress broad authority to “to pay the debts and provide for the common defense and general welfare of the United States,” Scalia is exactly right that it is almost entirely “up to Congress” to decide how it wants to appropriate.
Nevertheless, it is a sad commentary on the state of the modern GOP that ultra-conservative Justice Scalia has transformed into a voice of moderation against the even more radical Tea Party.

Update The Wall Street Journal reports that Scalia had even more disappointing news for his Tea Party hosts:

“He said, ‘States rights? Fuhgeddaboudit!’” said freshman Rep. Joe Walsh (R., Ill.), a self-described “tea-party guy” who came to Washington “to storm the gates.”

Mr. Walsh mentioned a couple of other surprises, including Justice Scalia’s view that the line-item veto, desired by some conservatives, is unconstitutional.

Moreover, “stare decisis—he’s okay with that,” Mr. Walsh said, using the Latin term for following legal precedent. [...]

Freshman Rep. Steve Southerland (R., Fla.) asked about the constitutionality of the Obama administration’s so-called czars. Justice Scalia said the president is entitled to hire advisers, and if that’s what czars were, there was little problem, according to Mr. Nadler. But Justice Scalia declined to get into specifics, saying the issue could come before the court. Mr. Southerland said he felt the justice ducked the question.