Quick legal summary: When there is a vacancy on The Supreme Court, the President gets the power to nominate a replacement. If they filibuster his nominee, it doesn’t get through, and he could technically not fill that vacancy even if they filibuster all his nominees for years. [Although so far a nominee has never been filibustered.] However, if congress is in recess, the president can do a recess appointment which is only temporary, and Republicans would be able to undo it next year assuming Democrats don’t regain control of the senate.
Many are saying this is what Obama should do since Republicans have already said that they will be filibustering his nominees no matter what (in a stunning move of bad politics). Here’s why he should absolutely not do that…
–There is absolutely no reason he shouldn’t get to appoint a permaneant replacement and have it approved. A “lame duck” POTUS in an election year has appointed a Supreme Court justice 18 times, the last being Justice Kennedy who Reagan appointed and is currently sitting on the bench. Obama has every right for his appointee to go through, and it would be unprecedented for them to filibuster his nominees solely because we’re in an election year. Their assertion that “the people should get a voice” is unprecedented and exactly not what the constitution says. If a senator had said that Pre-Obama, they would have been laughed out of the room.
–Let the American people see Republicans filibuster his nominees for no good reason. The longest it ever took to get confirmation on a Supreme Court Justice is roughly 120 days. The average confirmation takes about half that. Obama has more than 270 days left. If Republicans break a record for obstruction and Supreme Court vacancy–it’s unheard of for the court to have a vacancy for an entire year–it will make them look awful in an election year. Since there’s never been a Supreme Court filibuster it would look ridiculous for them to filibuster 3 or 4 of his nominees. It’ll be one more reminder that this is the party that made Benghazi the longest congressional investigation in history, and plays fast and loose with the constitution when it suits them.
–They want him to do a Recess Appointment. Mitch McConnel announcing he wouldn’t even consider Obama’s nominee was horrible politics. Usually, they would just pretend to consider the nominee and then call the nominee a “communist” that was unacceptable. By saying they won’t even consider it they’re the bad guys that Americans will rightfully start hating. If Obama does a recess appointment, then it takes the pressure off of them and they’ll flip it back on Obama saying he’s “once again using federal authority to get around congress.” It becomes a rallying cry for their candidates to undo his recess appointment.
–If they filibuster 3 or 4 nominees it will help congressional Democrats. If Obama puts forth 3 or 4 candidates–preferably women, from Amy Klobuchar to Jane Kelly to a black female nominee–it will drag out for months and make Republicans look awful that they’re rejecting any nominee put forward. It will be a rallying point for congressional Dems and help them raise money and voters like you wouldn’t believe. Right now, Bernie says his is a revolution “of the people against corporations” (although both sides in his battle are so far mostly white, upper-middle-class). But this battle could actually make that true, because the DNC will be able to raise money from minorities, women, unions, gay people, etc. in record amounts to fight the corporate money being raised on the other side. We really will see what it looks like when the two groups are trying to outspend each other.
–Without filling the vacancy, Obama really can get things done. If there’s a 4-4 tie in the Supreme Court—as there will start being quite frequently now—the case just upholds the decision the lower appellate court gave. 9 out of the 13 appellate courts are liberal. So in the case of Obama’s “Clean Power Plan” (which SCOTUS erroneously put a hold on) all the EPA has to do is go with a slightly different plan and a D.C. court would likely uphold what Obama wants to do. Without filling the vacancy, Obama could actually get more done.
So please Obama, you’ve been handed a huge gift. This actually could lead to a Democratic wave in November. It actually could turn the country against Republicans by giving them the clearest example yet of just how hopelessly partisan they truly are. Don’t go for the recess, don’t go for the temporary win that will be used against Dems in the long-run. Make the smart play, and force Republicans to take your nominee without the temporary asterisk. This is the moment we’ve been waiting for, and now it’s here.