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Trump’s Supreme Court Nominee: Go Nuclear or Recess Appointment?

This evening President Trump plans to reveal his nomination for the United States Supreme Court to replace the late Justice Antonin Scalia. Scalia’s death just over a year ago has left the court with 4 liberals and 4 conservatives (more or less). And any cases that are decided on ideological lines will likely end in a tie, upholding the lower court from whence the case came. And we all know that former President Obama has stacked the lower courts with left wing judges who do not have a problem legislating from the bench and believe the US Constitution is an old, outdated piece of paper.

So with an even split at the Supreme Court, these cases that were ruled on by Obama’s liberal judges are in need of a reversal. But the best we can see with a 4-4 split is a tie and the lower court’s ruling prevails. We desperately need a Constitutional Justice to be the tie breaker to drain the swamp.

Supreme Court Justices photo

Photo by SteveMasker

Trump released a list of 21 potential Supreme Court nominees last September to quell the fears of Conservatives that were concerned about Trump choosing an acceptable replacement for Scalia. And the list did not disappoint. There were few if any concerns expressed on the right about the quality, ability and acceptability of any of the potential nominees on the list. It was a good, solid group of experienced people that could step into the huge shoes of Scalia.

So before President Trump actually names a nominee, the Democrats in the Senate promise to filibuster whoever is nominated.

According to Politico:

Senate Democrats are going to try to bring down President Donald Trump’s Supreme Court pick no matter who the president chooses to fill the current vacancy.

With Trump prepared to announce his nominee on Tuesday evening, Sen. Jeff Merkley (D-Ore.) said in an interview on Monday morning that he will filibuster any pick that is not Merrick Garland and that the vast majority of his caucus will oppose Trump’s nomination. That means Trump’s nominee will need 60 votes to be confirmed by the Senate.

“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Merkley said in an interview. “We will use every lever in our power to stop this.”

It’s a move that will prompt a massive partisan battle over Trump’s nominee and could lead to an unraveling of the Senate rules if Merkley is able to get 41 Democrats to join him in a filibuster. Sen. Amy Klobuchar (D-Minn.) also reminded her Twitter followers on Sunday night that Supreme Court nominees can still be blocked by the Senate minority, unlike all other executive and judicial nominees.

Any senator can object to swift approval of a nominee and require a supermajority. Asked directly whether he would do that, Merkley replied: “I will definitely object to a simple majority” vote.

Merrick Garland was the judge that was placed into nomination in March, 2016 by Obama. NPR described Garland as a “moderate Liberal” which automatically made him an unsuitable replacement for the Conservative Scalia. The Republican controlled Senate refused to begin the process of a liberal justice nominated by a lame duck President.

Democrats are now whining that Garland should have been voted on with only 10 months left in Obama’s term. And calling the seat stolen is beyond reprehensible. And when you consider what the Democrats were saying the last 18 months of George W Bush’s second term, the Democrat’s hypocrisy runs deep: (From TownHall)

Speaking for the Democrats, Senate Minority Leader Harry Reid of Nevada wrote in The Washington Post last week that “the Senate’s Constitutional duty to give a fair and timely hearing and a floor vote to the president’s Supreme Court nominees has remained inviolable.”

But Harry Reid and the Democrats were not saying that when a Republican president was in the White House, and George W. Bush’s Supreme Court nominee was Samuel Alito, said Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley in a stinging Washington Post op-ed column last week.

“The duties of the United States Senate are set forth in the Constitution of the United States,” Reid said on the Senate floor at that time.

“Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote,” Reid said. “It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote.”

And if the White House and the Republicans didn’t get his point, Reid underscored it by saying, “The Senate is not a rubber stamp for the executive branch.”

That’s when a gaggle of some two dozen former and current Senate Democrats, who now demand a vote this year on Obama’s eventual nominee, lined up in an attempt to deny Bush an up-or-down vote on Alito’s nomination.

The anti-vote senators were Reid; Charles Schumer, New York; Patrick Leahy, Vermont; then-Sens. Barack Obama, Illinois; Joe Biden, Delaware; John Kerry, Massachusetts; and Hillary Clinton, New York.

Now, Obama, Clinton, Biden and their accomplices are singing a very different tune.

This was when Schumer, who is in line to become the next Senate Democratic leader, delivered an address to the leftist American Constitution Society, saying that the Senate “should reverse the presumption of confirmation” and “not confirm a Supreme Court nominee except in extraordinary circumstances.”

So after the last 10 months of arguments why the Senate must confirm Obama’s pick, that it was their duty and the harm to the Supreme Court made the appointment an emergency, suddenly the Democrats change arguments when President Trump was sworn in and they plan to stop any and all nominees from getting to the Supreme Court bench.

Obstruction for obstruction’s sake. The Republicans simply took the same stand as the Democrats did in 1998. No appointments the last year and a half of a presidency. Which they promptly discarded when the shoe was on the other foot. They don’t even have the excuse that a lame duck president should not get to pick a SCOTUS nominee. They are simply sore losers.

When they couldn’t get their way back when Harry Reid was majority leader and the Republicans stood in their way of Federal judgeship and other appointments (for cause rather than ideology), Reid changed the rules back in 2013 and we now have a simple majority rule for pretty much any nominee except Supreme Court. And they used that to stack the lower courts with liberal judges who rule on ideology more than they do the law. Something we have seen over and over. Reid said the Republicans put up roadblocks. Which is what the Democrats plan now.

So if the Republicans cannot find enough Democrats to support President Trump’s nominee to overcome the 60 votes needed to end a filibuster, Mitch McConnell and the Republicans have a couple of options. They can use the Nuclear option to lower the threshold to a simple majority, which means that when the Democrats take over the Senate in the future, (hopefully centuries from now) they will have to live by the same rule.

But knowing that Democrats will be Democrats, the next time they regain power in the Senate they will go nuclear to get their way. The good news is that we have 10 Democrat Senators who are from states where President Trump won, putting them in a delicate position should they go against the Trump nominee. So we obviously need to get a count before declaring a nuclear vote. However, since Harry Reid has already launched most of the nuclear weapons in his arsenal, the 60 vote cutoff for SCOTUS is eventually going to be launched. If not by the GOP, certainly by the Democrats at their next opportunity.

But another option is a recess appointment. When Obama did this with the NLRB, he lost in court because the Senate was not truly in recess. The decision was 9-0 against Obama and it set some rules for what constitutes a recess. There was talk about appointing Garland in the seconds between the last Congress and this Congress, but the 9-0 SCOTUS ruling spells out that a recess of less than 3 days is not a recess, and as many as 10 days may not be enough.

In the case ( Noel Canning v. NLRB ) justice Breyer wrote:

we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

So should a recess appointment be considered, it would need to be probably 11 days, and the Senate would have to conduct no business at all for that time.

The down side to a recess appointment is that the term will expire in less than a year, which will start the process all over.

What President Trump could do is appoint one of the names he mentioned that is not seen as very likely to overturn Roe vs Wade and should that nomination be blocked by Democrats, recess appoint a hard core enemy of abortion for the year. And then come back with the first nominee at that time.

It is a big chess game and one that will play out daily on our televisions and computer screens. No doubt about that.

My personal preference is to go nuclear. Democrats will use this at their next opportunity. Indeed, they already would have appointed another far left Justice to the court during Obama’s lame duck year if they were in charge. The nuclear option would be completely gone by now.


About Tom White

Tom is a US Navy Veteran, owns an Insurance Agency and is currently an IT Manager for a Virginia Distributor. He has been published in American Thinker, currently writes for the Richmond Examiner as well as Virginia Right! Blog. Tom lives in Hanover County, Va and is involved in politics at every level and is a Recovering Republican who has finally had enough of the War on Conservatives in progress with the Leadership of the GOP on a National Level.

2 Responses to “Trump’s Supreme Court Nominee: Go Nuclear or Recess Appointment?”

  1. GOP Gal says:

    My vote is for RECESS APPOINTMENT

    Because Trump Can all day long for the next 4 years.

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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