Published on February 25, 2016
1. THE SUPREME COURT VACANCY AND ITS IMPLICATIONS Joshua Baca and Lena Koncha, DDC Public Affairs
2. DDC | 2 Historical Precedent Since 1900, the Senate has voted on eight Supreme Court nominees during an election year and 6 were confirmed. • Several of those were for seats that had become vacant in the previous non-election year. • The Senate has never taken more than 125 days to vote on a successor from the time of nomination. • On average, a nominee has been confirmed, rejected or withdrawn within 25 days. • When Justice Antonin Scalia died, 342 days remained in President Obama’s term [New York Times]
3. DDC | 3 • Within an hour of the news, Senate Majority Leader, Mitch McConnell came out saying the Senate should not confirm a replacement for Scalia until after the 2016 election. • With a vacancy on the Court, the responsibility to fill it falls on President Obama and the Senate; pursuant to Article II, section 2 of the Constitution, the president nominates justices of the Supreme Court, and the Senate confirms them with a majority vote. • If Justice Scalia is replaced with a liberal, that would tilt the Supreme Court to a 5-4 liberal majority. • It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Scalia Vacancy & What it Means February 13, 2016 Justice Antonin Scalia passed away.
4. DDC | 4 Many cases are now facing an eight-member split. If the court ties, the decision of the appeals court remains in place, without setting a nationwide precedent. Key Cases Facing the Court • Clean Power Plan: Scalia presumably was among the five justices voting to suspend the Obama administration’s sweeping plan to reduce CO2 emissions from the nation’s electrical grid. • Immigration: The Supreme Court is also considering whether President Obama exceeded his powers in trying to shield millions of illegal immigrants from deportation. • Public-sector unions: Conservatives teed up the dream case with Friedrichs vs. California Teachers Assoc., which promised to overturn a 1977 decision, Abood v. Detroit Board of Education, that allows laws requiring government workers to pay union dues as a condition of employment. • Class actions: The Roberts court has steadily rolled back the excesses of the class-action bar, issuing rulings that enforce contract terms requiring individual arbitration and requiring plaintiff lawyers to state their claims with precision. • Affirmative action: The Supreme Court in July agreed to consider again whether race-conscious college admission plans are constitutional. • Obamacare: Little Sisters of the Poor v. Burwell is yet another challenge to the Obama administration’s rule requiring religious employers to provide contraceptive care in their insurance benefits. • Abortion: The conservative majority was poised to expand the concept of “undue burden” on a woman’s right to abortion to include regulations on providers in Whole Woman’s Health v. Hellersted.
5. DDC | 5 • Would be the first South Asian American and Hindu on the Supreme Court. • D.C. Circuit Court of Appeals judge, was already vetted by the Senate (and confirmed 97-0 in 2013). • Voted against the Clean Power Plan stay at the D.C. Circuit Court level. • Has defended giant corporations, such as ExxonMobil. • Was an assistant solicitor general under President George W. Bush. Judge Sri Srinivasan
6. DDC | 6 • At the top of the list is Democrat Loretta Lynch who was confirmed by the Senate to run the Justice Department in April and who would be the first black woman to serve on the court. [Washington Post] • Senate already vetted Lynch and that 10 Republicans voted for her confirmation. • Lynch can help motivate the Democratic base, making life harder for vulnerable Senate Republican incumbents who are up for reelection in swing states. Attorney General Loretta Lynch
7. DDC | 7 “The White House is vetting Republican Nevada Gov. Brian Sandoval for the Supreme Court vacancy created by Justice Antonin Scalia’s death, two people familiar with the matter said, and President Barack Obama said he won’t back down on sending a candidate to the Senate.” [WSJ 2/24/2016] • Sitting governor of Nevada • Mr. Sandoval is a former federal judge with a moderate record • Confirmed unanimously in a 2005 Senate vote • Has an approval rating north of 66% among Nevada voters [Morning Consult] Nevada Governor Brian Sandoval
8. DDC | 8 PAUL WATFORD • Obama appointee on the 9th Circuit and has been repeatedly mentioned as a potential Obama Supreme Court nominee • He was confirmed in 2012, by a 61-34 vote PATRICIA ANN MILLETT • 52, sits on the D.C. Circuit and is part of a slate of three nominees Obama put forward for that court in 2013 • Millett was confirmed by a 56-38 vote in December 2013 and is popular in both parties MERRICK GARLAND • Clinton appointee on the D.C. Circuit who has long been discussed as a potential Supreme Court nominee and is considered a moderate • At 63, he is a decade older than a typical Supreme Court nominee in the modern era JACQUELINE NGUYEN • In her early 50s, is a judge on the 9th Circuit • Her confirmation in 2009 was unanimous Other Top Democratic Contenders
9. DDC | 9 • California Attorney General Kamala Harris • Currently running for Boxer’s seat in California • U.S. District Judge Ketanji Brown Jackson • U.S. Senator Amy Klobuchar (D-MN) • 1st Circuit Judge David Barron • Senate voted 53–45 for final confirmation to the court • Attorney Kannon Shanmugam • CA Supreme Court Justice Mariano- Florentino Cuéllar Less Likely Democratic Picks • 8th Circuit Judge Jane Louise Kelly • Supported by Republican Senator Chuck Grassley • Appellate Judge on 11th Circuit Adalberto Jordan • Confirmed to the seat in a 94–5 vote • Senator Elizabeth Warren (D-MA) • Senator Orrin Hatch (R-UT)
10. DDC | 10 BRETT KAVANAUGH • 51-year-old judge at the U.S. Court of Appeals for the District of Columbia Circuit • Regularly named as a favorite Republican pick for the high court DIANE SYKES • Sykes, 58, has been a judge on the Chicago-based 7th U.S. Circuit Court of Appeals since 2004 after she was nominated by Bush WILLIAM PRYOR • 53-year-old judge has served on the Atlanta-based 11th U.S. Circuit Court of Appeals since 2004 after being nominated by Bush PETER KEISLER • 55, is an attorney at Sidley Austin LLP who was nominated in 2006 by Bush to fill Supreme Court Chief Justice John Roberts' seat on the D.C. Circuit • His nomination was blocked by Senate Democrats PAUL CLEMENT • Bush administration solicitor general is now a partner at Bancroft PLLC. He has argued more Supreme Court cases since 2000 than any lawyer in or out of government, according to his firm. MIGUEL ESTRADA • Partner at Gibson, Dunn & Crutcher is another Bush pick for the D.C. Circuit whose confirmation was blocked by Senate Democrats [E&E Publishing] Potential GOP White House Picks
11. DDC | 11 • Republican 54-seat majority is in serious danger in 2016 • Republicans are already fighting to defend seats in six states Obama carried twice: Florida, Illinois, New Hampshire, Pennsylvania, Ohio and Wisconsin • Democrats not only have fewer seats to defend, but the ones that are most at risk come from Colorado and Nevada, territory that has leaned Democratic in recent years[Politico] Battle for Senate Control
12. DDC | 12 Battle for Senate Control Republican 54-seat majority is in serious danger in 2016 Democrats have fewer risky seats to defend. Mainly Colorado and Nevada, which have leaned Democratic in recent years* *Politico Republicans are already fighting to defend seats in six states Obama carried twice: Florida, Illinois, New Hampshire, Pennsylvania, Ohio and Wisconsin
13. DDC | 13 The Implications for the Nation of a Changing Supreme Court Regardless of what happens with Justice Scalia’s replacement, there will be likely at least three other Justices to be appointed over the next 4-8 years of the next President’s term – Justice Ruth Bader Ginsburg will be nearly 84 – Justice Anthony Kennedy will be over 80 – Justice Stephen Breyer will be 78 Stakes are extremely high for not only for Scalia’s replacement, but the implications on Senates races and the direction of the country’s ideological leanings should a Democrat get elected to the Presidency.
14. THANK YOU Joshua Baca and Lena Koncha, DDC Public Affairs
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