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Comment by tptacek | Hacker News Reader

He's the Senate Majority Leader and the official spokesperson for Republicans in the Senate. The fact that he said it right away, after two GOP Senators who are also viable Presidential candidates said it as well, is a pretty strong indication of what's going to happen.

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McConnell is a blow-hard, and is looking for a rally-point for the party. I'm sure he believes this is what Scalia would have wanted.

But the idea that the "American People" wouldn't have a say with an Obama appointment is absurd. He was elected with a clear majority and Presidents are elected for four years, not four years minus whenever the next presidential race gets going.

I know you've expressed elsewhere (edit: in this thread) that Republicans have already made it clear that they won't do an appointment this presidency (and you're probably right that they're trying to set themselves firm in this as quickly as possible), but I can't imagine a scenario where Obama doesn't put forth a nomination post-haste. I also cannot imagine 11 months of blocking a SCOTUS nomination and leaving the court with 8 members.

He will nominate quickly and, because the Senate is allowed to, they will slow roll and then block the nomination.

This isn't the first time this has happened. The Supreme Court will function just fine with 8 justices.

Blame John Adams!

But that's exactly what the Democrat-controlled Senate did after Justice Abe Fortas resigned in disgrace in 1969. They knocked down Nixon's first two nominees, and Fortas wasn't ultimately replaced by Blackmun until a year later[0][1][2].

[0] - Several Wikipedia pages say May 12, but:

[1] - this one says May 17: https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_th...

[2] - this page says June 9: http://supremecourthistory.org/timeline_blackmun.html

Point of Inquiry, Is there a parliamentarian in the house? There may be one or more ways to force McConnell's hand.

The president can use a recess appointment. It would probably end up looking worse than blocking a nomination for 11 months so it seems unlikely, if technically possible.

What's Obama got to lose?

A recess appointment would make it an ironclad certainty that a Republican would be elected president. It would make enough voters, including moderates, angry enough that a Democrat would stand no chance.

I don't know. I used to think I was a moderate, and I'd vote for almost any Democrat to keep Republicans from getting two SCOTUS appointments. It's an excellent point though, it would give Republicans a huge issue propaganda win.

I mean they do have to vote on a recess appointment. IIRC

Senators leave Washington, there are time limits on debate, they may not be able to return in time. Or, if a potential recess appointment is suspected, the Republicans will be spending their holidays in DC.

Good luck with that with 1/3 of Senate going for re-election. Summer is the best time to campaign but if they choose to stay in D.C., that's up to them.

The Senate can prevent recess appointments by not recessing.

Sure, and, of course, that itself was subject of a recent Supreme Court decision. But it's piling a hypothetical on my already silly hypothetical. He'll just make an appointment as he's already said and reasonably argues is his duty, the Senate will just stall him out, as the majority leadership has already said.

I like to imagine he and the Democrats in general might actually end up looking better if that's how it plays out.

And not recessing means sitting Senators cannot campaign. Which party likely benefits from that?

No, they have been using a pro forma procedural motion for years that effectively means they are never in recess, but there are untested ways that the President can force a formal recess.

He would have like 8 or 9 days to do this. Senate will be back from recess on 22 Feb.

The parliamentarian is an advisor to the presiding officer of the senate, which is either the vice president or in his absence the president pro tempore (by tradition the senior member in years of service of the majority party) or his designee.

In any event any parliamentary ruling is appealable to the floor where it is subject to a majority vote. The is the basis of the so-called nuclear option.

McConnell's hand can be forced if there is a majority willing to do what it takes to force it. If he has the procedural support of his caucus (even if they disagree on the ultimate question) he can prevent a vote from coming to the floor.

Edit: I misread the first sentence. Mea culpa.

Thanks. I know what a parliamentarian is and in any case could've found the dictionary definition. I was hoping for suggestions as to what kind of sneaky tricks and shenanigans we could expect if the opportunity presented itself.

I would hazard the explanation was to the benefit of the less educated readers, such as is yours truly.

At least wait until the man is buried.

The right-winged politicians are posturing to make this a presidential election issue, maybe even a big one.

Electing a president who will in turn appoint a SCOTUS Justice may sway more people to vote. Perhaps the the politicians believe that they can use the normal wedge issues (abortion, death penalty, guns, etc.) to have a strong showing on election day.

I would tend to agree that an open SCOTUS seat would motivate more conservatives to vote. But, these things have a way of back firing for politicians and a lot can happen between now and November.

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