Peeking ahead to the Trumpification of the federal judiciary

The Brookings Institution's Russell Wheeler points out that when it comes to judicial nominations, "The president doesn't always get exactly who he wants." I guess that should make us feel better.

by Ken

My attention was grabbed by the story hawked in yesterday's washingtonpost.com "Post Most" which began:

Trump to inherit more than 100 court vacancies, plans to reshape judiciary

By Philip Rucker and Robert Barnes

Donald Trump is set to inherit an uncommon number of vacancies in the federal courts in addition to the open Supreme Court seat, giving the president-elect a monumental opportunity to reshape the judiciary after taking office.

The estimated 103 judicial vacancies that President Obama is expected to hand over to Trump in the Jan. 20 transition of power is nearly double the 54 openings Obama found eight years ago following George W. Bush’s presidency.

Confirmation of Obama’s judicial nominees slowed to a crawl after Republicans took control of the Senate in 2015. Obama White House officials blame Senate Republicans for what they characterize as an unprecedented level of obstruction in blocking the Democratic president’s court picks.

The result is a multitude of openings throughout the federal circuit and district courts that will allow the new Republican president to quickly make a wide array of lifetime appointments.

State gun control laws, abortion restrictions, voter laws, anti-discrimination measures and immigrant issues are all matters that are increasingly heard by federal judges and will be influenced by the new composition of the courts. Trump has vowed to choose ideologues in the mold of the late Supreme Court justice Antonin Scalia, a conservative icon — a prospect that has activists on the right giddy. . . .

The post goes on to quote some of those giddy right-wing activists, and to take note of the considerable anger on the other side, Democrats furious over Republicans' abusive handling of Obama judicial nominations, leaving federal court from the Supreme Court on down undermanned, in many states critically so. There is, for example, the 4200-word statement issued this month by Pat Leahy, ranking Democrat on the Senate Judiciary Committee,

saying that by blocking [Obama Supreme Court nominee Merrick] Garland, Republicans had committed “the most outrageous act of obstruction and irresponsibility” that he had seen in his 42 years in the Senate.

Speaking more generally about circuit and district court vacancies, Leahy added: “Despite the fact that there are dozens of qualified, consensus nominees pending on the Senate floor right now, we will finish this Congress having confirmed just 22 judicial nominees in two years. That is the lowest number since Harry Truman was president.”

Naturally, Judiciary Committe Chairman Chuck Grassley considers the only relative statistic that Obama got three more judicial appointments confirmed in his eight years as president than George W. Bush did, 329-326. And no doubt Republicans are smarting from the considerable transformation of the federal judiciary, in terms of basic legal competence and diversity, wrought by those 329 "Obama judges." Their response was to pretty much shut the pipeline, leading to the present horrendous backlog, even of nominees confirmed by the Senate Judiciary Committee. And because Republicans have unlimited license to be both liars and imbeciles, they can pretend that the record on Senate treatment of actual judicial appointments doesn't matter -- including Majority Leader Mitch McConnell's wholly unprecedented refusal even to consider the Garland Supreme Court nomination.

So what lies ahead for the federal judiciary, apart from the like-as-not three Supreme Court vacancies that will need filling? The Post-ies offer one veteran judicial observer's analysis.

Russell Wheeler, an expert on judicial nominations at the Brookings Institution, said Trump has a great opportunity to change the partisan split in the federal courts. He predicted that by mid-2020, Republican appointees would hold about half of the 673 district judgeships, as opposed to the current 34 percent. And among the 179 circuit court judgeships, Democratic appointees now hold a slim majority, 51 percent, but that could fall to about 43 percent.

But Wheeler warned that there are important limitations to Trump’s power. For one thing, many of the judges most likely to leave their appointments in the coming years were appointed by Republican presidents, meaning there will be fewer opportunities to shift the partisan makeup.

And perhaps more importantly, 28 of the 50 states will be represented by at least one Democratic senator, including large ones such as California, Florida and New York. Senate leaders have a tradition of considering nominees only if they are supported by both senators representing their state — and Democratic senators are expected to bargain hard with the Trump administration, just as Republican senators did with Obama’s.

“The president doesn’t always get exactly who he wants,” Wheeler said.

Well, okay, I suppose. It's just that present-day congressional Republicans have an impressive history of doing whatever it takes to get what they want, and to hell with whoever or whatever gets in their way.


BUT THERE IS A STOPGAP SOLUTION: THE ONE
CRAFTED BY NO LESS THAN SENATOR McCONNELL

Ironically, the McConnell Garland-stonewalling strategy points the way to at least a stopgap solution. Miss Mitch, lying his putrid guts out, as he so often does (like so many Republicans, his basic approach to the truth is "Why resort to it when there's a usable lie available?"), that there was precedent for not considering a Supreme Court made in a president's final year. The truth (ooh, that word again!) is that the precedents apply to appointments considerably later in the president's final year, not to leaving a Supreme Court seat vacant for more than a year.

However, now that it turns out to be a matter of interpretation just how early in a presidential term the embargo on judicial nominees applies, I can't think why it shouldn't already apply to President Trump, and the Senate shouldn't be allowed to consider any judicial nominees from him. After all, there's a presidential election less than four years away, and as Miss Mitch insisted, the people have a right to be heard before the Senate rushes to judgment.

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The Republican Party's Grassley-McConnell Blockade Of The Supreme Court Continues

Iowa Republicans obstructing the Supreme Court

If I was a senator, I'd be predisposed to vote against Merrick Garland. He's just too conservative. I wrote about it on the day President Obama nominated him. But I would have not the slightest reticence about speaking with him and examining him in an open hearing. Anything less is strictly anti-democratic, hyper-partisan obstructionism, disrespect for the Constitution and for the American voters who elected Barack Obama. If I remember correctly, Obama's approval rating is 53% (45% disapprove) whereas the Congress is barely in double digits and Mitch McConnell, the Republican who came up with the No Hearings strategy has a 15% approval rating.

Monday's Des Moines Register published another editorial on Chuck Grassley's role in the Republican obstructionist strategy. Grassley, whose seat is up in November, is the chairman of the Senate Judiciary Committee and has refused to agree to hearings on the president's nominee, something I don't remember ever have happened before in history.

The Supreme Court will continue to function, but not to its full effectiveness as a third branch of government. There are already signs that the pace of rulings has slowed in the last two months.

How long should the nation’s highest court be weakened, and in some situations, effectively neutered? For more than a year, according to Grassley and other Republicans.'

Grassley, chairman of the Senate Judiciary Committee, has argued that the appointment should be delayed until a new president is sworn in 2017-- even if Democrat Hillary Clinton wins in November.

He calls it a waste of time to consider President Barack Obama’s nominee for the court, Merrick Garland. Even though few disagree that Garland's resume is superb. Grassley even said so in 1997, when the Senate was considering Garland for an appeals court nomination: “He seems to be well-qualified. He would probably make a good judge in some other court … where the seat needs to be filled."

Senator, this seat needs to be filled, regardless of whether the presidency and your own seat is up for grabs in November.

We have admired Grassley’s principled stands on issues in his 35-year tenure as U.S. senator. In most cases, these stands have ensured government works more effectively and efficiently for his constituents and taxpayers.

But refusing to hold hearings on Garland is pure partisanship-- and simple stubbornness.

Grassley won’t give Garland a chance, to even let him in the game.

That’s unsatisfying. And un-American.

If I remember correctly, the Des Moines Register is not just the biggest newspaper in Iowa, it is also a newspaper that regularly endorses Chuck Grassley for reelection. One of the few Republicans who have rejected the McConnell-Grassley strategy is Maine's senior senator, Susan Collins. And she thinks the strategy stinks. Unlike Mark Kirk, who is fighting for his political life, Collins' seat isn't up this year. But yesterday she was the second Republican senator to meet with Garland. Afterwards she told the media that she's "more convinced than ever that the process should proceed. The next step, in my view, should be public hearings before the Judiciary Committee so that the issues that we explored in my office can be publicly aired... He has a humility about him. He has clearly thought very deeply about the issues confronting the courts, there was not any question he could not handle, and he has a long record of accomplishment."

Collins said Tuesday that it was “premature” to say whether she would support Garland in a floor vote but said she “found the judge to be extremely straightforward” during a lengthy conversation that touched on the Second Amendment, the limits of executive power and the role of the court in American life.

“He gave very thorough, impressive responses to all of my questions,” she said.

Asked about the blockade favored by Grassley and Senate Majority Leader Mitch McConnell (R-Ky.), Collins said the Senate is “best served by following the regular order” but added that she was “not optimistic that I will be changing minds on this issue.”

She added: “It would be ironic if the next president happens to be a Democrat and chooses someone who is far to Judge Garland’s left.”

McConnell's strategy is working... to decimate the Senate Republicans

Another Republican up for reelection in November is John Boozman of Arkansas and he was pressured into taking a meeting as well. He's not bright enough to follow Collin's logic about someone "far to Judge Garland's left." After his 20 minute long meeting, he couldn't wait to tell the media that he still opposes holding Judiciary Committee hearings on the nomination. Boozman has been pressured by right-wing extremist groups who he normally counts on for support.

Garland deserves a serious hearing and senators owe it to their constituents to vote yes or no based on the merits, although perhaps some-- Jefferson Beauregard Sessions III, I guess-- would prefer a Donald Trump nominee. I suggest that if you don't, you consider any or all of the Blue America Senate candidates by tapping on the thermometer below:

Will The Republican Party EVER Be Able To Escape Its Own Congenital, Backward-Looking Obstructionism?

On the day Obama announced his nominee to fill Scalia's job was Merrick Garland, we made it clear what our opinion of the nomination is: Yuck! The political gamesmanship yielded up the most conservative nominee a Democrat has proposed to the Supreme Court in many decades. Terrible choice... but politically strategic. Easily, the worst of all outcomes would be that Garland gets confirmed in a lame duck session after a Bernie landslide pulls in a nearly filibuster-proof Democratic Senate that does not include Kelly Ayotte (R-NH), Ron Johnson (R-WI), Mark Kirk (R-IL), Rob Portman (R-OH), Pat Toomey (R-PA), Chuck Grassley (R-IA), Roy Blunt (R-MO), John McCain (R-AZ), Rand Paul (R-KY), Richard Burr (R-NC), and where Alan Grayson has replaced Marco Rubio. That would mean a Senate with 57 Democrats (as long as Vermont replaces Bernie with Peter Welch) and 43 pretty demoralized Republicanos. With Bernie in the White House and a healthy Democratic majority in the Senate, there would be no need to pick a conservative nominee. Even if Clinton wins the White House, she would likely pick a better nominee than Garland, likely nominate outstanding California Supreme Court Justice Goodwin Liu.

But Democratic strategy has been to pressure vulnerable-- and even not-so-vulnerable-- Republicans to give Garland a fair hearing. Mark Kirk already met with him. Susan Collins and Lisa Murkowski said they will as well. And with editorialists across the country pounding on the GOP for their blatant and ugly obstructionism, even Kansas' Jerry Moran and far right ideologue Ron Johnson indicated that they might be open to a fair process. But then the pressure from the far right started mobilizing and-- poof-- Moran, Murkowski and Johnson instantly caved.

Johnson, who is the most likely Senate Republican to lose his seat in November, told the Milwaukee Journal-Sentinel on March 16 that he'd meet with Garland. "I have no problem with meeting with people. I'll have to say, I'm not sure what the point will be." He's since changed his perspective to "no comment." Moran, who has no viable opponent in November, but was blasted by the editors of the Kansas City Star on March 16, has been even worse.

Senators Jerry Moran of Kansas and Lisa Murkowski of Alaska have reversed themselves and say they now back the decision made by Senator Charles E. Grassley of Iowa, chairman of the Judiciary Committee, not to hold hearings.

“Senator Moran called Senator Grassley to discuss his position,” said a statement released by Mr. Moran’s office on Friday. “As Senator Moran has said, he is opposed to President Obama’s Supreme Court nominee. He has examined Judge Garland’s record and didn’t need hearings to conclude that the nominee’s judicial philosophy, disregard for Second Amendment rights and sympathy for federal government bureaucracy make Garland unacceptable to serve on the Supreme Court.”

Mr. Moran’s announcement, first reported by National Review, came a week after he said the Senate should move forward with the nomination process, including holding hearings and meeting with Judge Garland.

“As I have said since the vacancy was created, I believe I have a duty to ask tough questions and demand answers,” he said in a statement on March 25. “I am certain a thorough investigation would expose Judge Garland’s record and judicial philosophy, and disqualify him in the eyes of Kansans and Americans.”

On March 21, according to the Garden City Telegram, Mr. Moran told constituents, “I would rather have you complaining to me that I voted wrong on nominating somebody than saying I’m not doing my job.”

Similarly, a spokeswoman for Ms. Murkowski, Karina Petersen, said the Alaska senator also no longer supported holding hearings, though she will meet with Judge Garland to discuss cases that are important to her state.

“Senator Murkowski respects the decision of the chair and members of the Judiciary Committee not to hold hearings on the nominee,” Ms. Petersen wrote in an email.

In February, before Mr. Obama named Judge Garland as his pick, Ms. Murkowski told reporters in Alaska that the nominee should be granted a hearing. Though she emphasized, in a Facebook post the next day, that she opposed Mr. Obama’s making the nomination, Ms. Murkowski had declined to directly address her stance on holding hearings since her comments in February.

As the right-wing psychos-- including the Koch brothers' pet congressman Mike Pompeo-- went nuts on Moran's ass, he backed away from even agreeing to meet with Garland. His latest statement, through an aide: "He has examined Judge Garland’s record and didn’t need hearings to conclude that the nominee’s judicial philosophy, disregard for Second Amendment rights and sympathy for federal government bureaucracy make Garland unacceptable to serve on the Supreme Court. Senator Moran remains committed to preventing this president from putting another justice on the highest court in the land."

Just a week earlier Moran told the Dodge City Daily Globe "I think we have the responsibility to have a hearing, to have the conversation and to make a determination of the merit... I think I have the responsibility to consider a nominee presented by a president and make a determination whether he or she is qualified. I'm willing to participate in the process" and had admitted that not meeting with Garland and not pushing for a hearing would be "not doing my job."

You would be severely mistaken if you thought the only thing making the GOP dysfunctional and detrimental to the United States is Donald Trump. The way extremists can push Republican senators like Moran, Johnson and Murkowski around go deeper than Trump's bizarre ego-trip. Political scientists Jacob Hacker and Paul Pierson in yesterday's NY Times:

Given the current dysfunction of the Republican Party, many both inside and outside Republican ranks are probably hoping that a big defeat will force the party to change. But waiting, as the current president once put it, for the “fever” to break may be fruitless.

Try this setup instead: It’s 2017. After Mr. Trump’s landslide defeat, President Clinton has a Democratic Senate and House of Representatives. The Republican National Committee has just released its latest post-mortem-- it probably looks a lot like the post-2012 soul-searching exercise, the Growth and Opportunity Project, which encouraged moderation in tone and inclusiveness in policy.

But that blueprint is ignored. Instead, the party quickly regroups in opposition to the incoming administration. Most Republican voters hate Mrs. Clinton even more than they hated Mr. Obama. The conservative apparatus for sowing discontent with a new administration is in place, flush with cash and battle-tested.

For Republicans in and outside government, it will be a time not for facing up to hard truths but for doubling down on hardball tactics.

...More worrisome, they reinforce a dangerous spiral. The most effective Republican response to its own unpopularity in presidential elections is to take steps to make the American political system more unpopular still.

The final pre-primary polling for Wisconsin came out a few hours ago by Emerson and it shows that Bernie has surged past the establishment candidate and now leads her by 8 points (51-43%); in Emerson's last Wisconsin poll 2 weeks ago, Hillary was up by 6 points. Nice turn-around, which he'll need to do in New York as well. He's doing his part; are we doing ours? And, you know, it's not enough to support Bernie's bid for the presidency. His political revolution means replacing an obstructionist, corporately-owned Congress with a more progressive one. You can be part of that-- we all can. Whether you give $270 to one candidate or split $27 among all of them, please take a look at these progressives running on Bernie's platform... and do what you can:

Can North Carolina Democrats Replace Unpopular Obstructionist Richard Burr (R) With Deborah Ross (D)?

North Carolina Senator Richard Burr isn't all that popular back home and he'll have to face the voters in November in a race against former state Rep. and former North Carolina head of the ACLU, Deborah Ross. Last week, each won their respective primaries, Burr with 437,136 votes (61.9%) and Ross with 445,772 votes (63.3%). As of the February 24 FEC deadline Burr had spent $2,693,982 on his race and Ross had spent $635,999 on hers. He has a massive $5,312,89 war-chest and she has about $5 million less. (I might add that the industry that has been most generous to Burr this cycle is... the Securities and Investment folks (i.e., the banksters), which they look at as a good investment since he's on the Senate Finance Committee. #2 is Big Pharma. Anyway, what I meant my him not being popular was a reference to the polling on the topic. Survey USA asked the straight forward question of North Carolina voters and Burr was underwater-- 34% approve and 41% disapprove. Independents are especially not fond of him and only 28% approve, while 42% disapprove-- a bad signal.

A more recent poll-- PPP's this week-- found that his job approval hasn't improved: 32% approved and 40% disapproved. In a November match-up, he's polling ahead of Ross, who is still introducing herself to the voters. He beats her 40-35% with 7% going to the Libertarian and 17% undecided. Part of Ross' problem is that corrupt New York ward boss Chuck Schumer and the DSCC he controls didn't give up on their dream candidate, far right Blue Dog Heath Shuler until the very end. It sent a bad signal that Ross is just coming out from under.

PPP Director Tom Jansen's analysis warns that Trump could make life tough for Burr. He pointed out that "to put the current state of the race in perspective Elizabeth Dole led Kay Hagan by 5 points on our first poll after the primary in 2008 too, so Ross is starting her upset bid in a very similar place to where Hagan started hers."

Burr has indicated that he will support the Republican nominee for President regardless of who it is. We find that voters are less likely to vote for Burr by a 26 point spread if he supports Trump for President-- doing that would make 48% of voters in the state less inclined to vote for the incumbent compared to only 22% who would be more likely to vote for him. That's a good early indicator of the trouble Trump poses for his party. Another thing making life harder for Burr is the heavily damaged brand of Senate Republicans. Only 15% of voters in North Carolina approve of the job Mitch McConnell is doing, compared to 51% who disapprove. And one issue fueling that unpopularity is the intransigence on the Supreme Court seat-- 52% of North Carolinians want to see it filled this year, compared to just 41% who think it should be left empty.

“Richard Burr isn’t all that well known to voters in North Carolina even after two terms in the Senate,” said Dean Debnam, President of Public Policy Polling. “That leaves him susceptible to being defined by Donald Trump and Mitch McConnell, and that could make his reelection fight a lot tougher than expected.”

...It looks like Republicans are going to nominate either Donald Trump or Ted Cruz though, and they both trail the Democratic candidates by small margins. Clinton leads Trump 44/42, and Sanders has a 48/41 advantage over him.

Issues aren't on Burr's side either. He opposes the EPA on Climate Change regulations which voters approve of it 66-28% and he opposes raising the minimum wage while 76% of North Carolina voters approve raising it, compared to 12% who think it should stay where it is and 9% who want to abolish it. Perhaps more germane is the fight over the Merrick Garland nomination to the Supreme Court. Burr was quick to agree with Mitch McConnell (who has a 15% job approval rating among North Carolina voters) that the Senate should ignore Obama's nominee and not even grant him a hearing. North Carolina voters do not like that-- not at all. 52% say the position should be filled and only 41% say it shouldn't be. Another finding NRA darling Burr may have to tap dance around has to do with gun safety. By an 83/8 spread, voters in the state support requiring background checks on all gun purchases, with support for that coming from 89% of Democrats, 80% of independents, and 78% of Republicans.




Nor is Burr the only Republican senator previously considered "safe," who is now in trouble with voters back home. Roy Blunt represents Missouri, a purple state leaning towards the GOP. He was first elected to the Senate in a solid Republican year (2010) with 54% of the vote against a weak opponent. This time he'll face a more formidable opponent in Secretary of State Jason Kander. The most recent poll (November 1) showed Blunt leading Kander 43-33%. Yesterday, the Kansas City Star released a poll specifically about the Merrick Garland nomination, which found that 86% of respondents would like to see Garland get an up-or-down vote by the Senate. 82% said they agreed with that strongly. Blunt, of course, has backed McConnell's strategy of no meetings, no hearings, no vote, no, no, no, no... This is the question and the response that should have Blunt as concerned as he looks:

Imagine A Trump Supreme Court If You Dare

During a speech Sunday night at his Mar-a-Largo club in Palm Beach, Don Trump told the assorted sycophants in attendance that he's going to have someone-- far right crackpot Jim DeMint, it later turned out-- put a list of 5-10 judges together for him "and those are going to be the judges that I’m going to put in" [for Supreme Court nominations]. "It will be one of those judges, and I will guarantee it personally, like we do in the world of business, which we don’t like to do too often. But I will guarantee it that those are going to be the first judges that I put up for nomination if I win. And that should solve the problem, and I think that’s a good idea, right?" Sure, Don Trump! He also promised that if he's elected he'll start "acting presidential." His wife and kids have been bothering him to, he said.

Rob Portman is an undistinguished, white bread senator from Ohio who has vowed to block President Obama's conservative Supreme Court nominee, Merrick Garland. He wrote an OpEd over the weekend trying to justify his hyper-partisan obstructionism, an awkward place to be in for a guy who pretends to be a purple state moderate, and grudgingly agreed to meet with Garland, the way a child agrees to eat his spinach so he is allowed to stay up and watch TV. Portman, after all, knows how to read polls, like this one by ABC News and this one by CNN or the one below from NBC News. All show over 60% of Americans want the Senate to hold hearing on the Supreme Court nomination now, not after a new president is sworn in in January of 2017. Yesterday a new poll from Monmouth found that 77% of Americans (including 62% of Republicans) think the Senate GOP leaders are "playing politics" with the nomination. That doesn't matter for senators like McConnell-- who came up with the strategy and who is not up for reelection this cycle-- but it could kill Republican reelection bids for Republicans like Portman (as well as Kelly Ayotte, Roy Blunt, Ron Johnson, Mark Kirk, Pat Toomey, and Chuck Grassley).

Another conservative Republican, George Will, also wrote an OpEd over the weekend and he dug into the queastion-- or at least half the question-- many Republicans are asking themselves... or should be. Merrick Garland is the most right wing nominee from a Democratic president in living memory. Republican senators know him and like him. Does someone think Trump (or Hillary or Bernie) is likely to make a more palatable nomination? He called McConnell's and Grassley's response to the nomination "incoherent," "a contradictory tossed salad of situational ethics," and "a partisan reflex in search of a justifying principle... radiating insincerity."

Republicans who vow to deny Garland a hearing and who pledge to support Donald Trump if he is their party’s nominee are saying: Democracy somehow requires that this vacancy on a non-majoritarian institution must be filled only after voters have had their say through the election of the next president. And constitutional values will be served if the vacancy is filled not by Garland but by someone chosen by President Trump, a stupendously uninformed dilettante who thinks judges “sign” what he refers to as “bills.” There is every reason to think that Trump understands none of the issues pertinent to the Supreme Court’s role in the American regime, and there is no reason to doubt that he would bring to the selection of justices what he brings to all matters-- arrogance leavened by frivolousness.

Trump’s multiplying Republican apologists do not deny the self-evident-- that he is as clueless regarding everything as he is about the nuclear triad. These invertebrate Republicans assume that as president he would surround himself with people unlike himself-- wise and temperate advisers. So, we should wager everything on the hope that the man who says his “number one” foreign policy adviser is “myself” (because “I have a very good brain”) will succumb to humility and rely on people who actually know things. If Republicans really think that either their front-runner or the Democrats’ would nominate someone superior to Garland, it would be amusing to hear them try to explain why they do.

That Merrick Garland Nomination-- Yuck!

Despite fulsome praise from the carefully orchestrated Democratic lapdog organizations, progressives are anything but impressed with Merrick Garland... although many progressives are impressed with President Obama's revitalization of his multi-dimensional chess game against the Senate Republicans. The video from Fox News above is important to watch if you want to follow and comprehend this kabuki theater as it unfolds over the next few months. As Fox's "senior judicial analyst," Judge Andrew Napolitano, explained above, "Garland is the consummate Washington, DC insider [and] the most conservative nominee to the Supreme Court by a Democratic president in the modern era." By "modern era," he's talking about in any of our lifetimes.

Now everyone will be-- should be-- asking why Obama backed away from the already bad enough Sri Srinivasan-- who he had, after all, told all his allies he had decided on-- to choose Garland? Perhaps he is figuring (or something) that President Hillary-- or, most certainly President Bernie-- will not re-nominate him after the clumsy and hyper-partisan Republican Senate braggarts stumble awkwardly into rejecting him. Had Obama selected his first choice-- Srinivasan-- after the Republicans killed that nomination, Hillary wouldn't have had much choice other than to re-nominate him if she were elected along with a Democratic Senate. If progressives put up at least a bit of a fight against Garland's conservatism during the debate-- if there is a debate, which there should be-- she can safely pass over him and nominate someone much younger and more-- dare I say-- liberal... although more liberal than Garland covers a lot of ground.

It might be Hillary's inclination to go for, say, California Supreme Court Justice Goodwin Liu, husband of long-time close Hillary crony Ann O'Leary. Some think, in fact, that it is that threat of Liu-- and his 40 liberal years on the Court, that may well lead to Grassley and McConnell changing their tune on the obstructionism dance they've been doing. So far two very at risk Republican senators, Kelly Ayotte (NH) and Mark Kirk (IL) plus Susan Collins (ME), have announced they will be meeting with Garland and giving his nomination due consideration. Republicans aren't obligated to confirm him but they are insane to treat him with any disrespect given his position as the Chief Justice of the DC Circuit Court which makes so many of the important decisions they care most about. McConnell, Hatch (who actually suggested Garland just last week), Flake, Graham, Cornyn and Grassley-- if not vicious ideologues and clods like Cruz, Sessions and Lee-- know better than to piss the guy off for no reason. I had to laugh when I read a statement from the Congressional Record-- albeit an old one-- from Iowa Governor Terry Branstad to Grassley: "I am writing to ask your support and assistance in the confirmation process for a second cousin… Merrick Garland has had a distinguished legal career."

Don't expect DWT to be supportive of Garland-- although, obviously we respect the process. The White House and its lapdogs can fight this battle on their own while we highlight all Garland's horrible conservative decisions that have been so harmful to real people. It's important for progressives-- if not professional Democrats and those Beltway lapdogs of theirs, to make it clear to Hillary and Democratic senators that we expect more in a nominee, a lot more than Merrick Garland. Obama's fine in making the Republicans look like the unreasonable jackasses they are... so long as we don't get stuck with Garland in the process.

Bernie seems to be playing along. This was his statement a couple of hours ago: "Judge Garland is a strong nominee with decades of experience on the bench. My Republican colleagues have called Judge Garland a 'consensus nominee' and said that there is 'no question' he could be confirmed. Refusing to hold hearings on the president's nominee would be unprecedented. President Obama has done his job. It’s time for Republicans to do theirs. I call on Sen. Grassley to hold confirmation hearings immediately and for Leader McConnell to bring the nomination to floor of the Senate if Judge Garland is approved by the Judiciary Committee."

UPDATE: Don't Let Anyone Tell You Garland Is A Progressive

Mark Plotkin isn't high on President Obama's nomination of Merrick Garland and points out that a nominee's acceptability to Republicans-- with Garland has aplenty-- shouldn't be what motivates "a president to choose someone in particular. A president who takes that path is denigrating the process and making this most important appointment nothing more than a political deal." But what Plotkin is all worked up over is a case many people have never heard of, Alexander v. Daley.

The basis of the legal argument put forth by American University law professor Jamin Raskin, Assistant D.C. Corporation Counsel Walter Smith and attorneys Charles Miller, Evan Schultz and Tom Williamson of Covington & Burling-- as noted in a law review article co-authored by Raskin in Human Rights Brief-- was that the "denial of the D.C. community's right to be represented in the U.S. Congress violates the rights of Equal Protection, Due Process, a republican form of government, and the privileges and immunities of national citizenship-- all critical democratic guarantees of the U.S. Constitution."

What Garland did, along with another judge, was to rule against the citizens of D.C. In a tortured and simplistic opinion, he said that since D.C. was not a "state," its citizens should not be accorded the same rights as every other U.S. citizen. This opinion was the moral equivalent of Plessy v. Ferguson (1896), saying that "separate but equal" was legal.

In my opinion, it was a classic illustration of voter suppression, using a phony legal justification for denying the vote to an entire group of U.S. citizens-- in this case, citizens of the nation's capital. That decision alone should disqualify him from consideration to the highest court in the land.

It is my opinion that Garland did not want to go out on a limb and favor anything so radical as providing the vote to over 600,000 disenfranchised citizens (76 percent of whom are registered as Democrats). You see, this opinion would be viewed as controversial and too liberal, and the last thing Garland wanted was to have those monikers attached to him.

So he carefully positioned himself on the "right" side so he could be viewed as viable if a chance for the Supreme Court ever presented itself. When it came to this decision, Garland, with all his impressive educational and professional credentials, chose to think of his own judicial advancement first.

At the very top of the Supreme Court, emblazoned in stone, are these simple words: "Equal justice under law." Merrick Garland decided to ignore and violate that sacred principle.

Republican Senate Incumbents Facing Angry Voters Over Knee-Jerk Obstructionism

We've mentioned that Republican obstructionism over the Supreme Court vacancy could hurt some of the Republican Senate incumbents, particularly Chuck Grassley in Iowa, who the DSCC had originally declared invulnerable. No one thinks he's invulnerable any longer and support is building for progressives Tom Fiegen and Rob Hogg, while the DSCC found themselves a Monsanto-backed corprate shill to get behind. PPP Senate results of surveys in four states bolsters the possibility that the GOP's bitter obstructionism against Obama is something they could pay for very dearly in November.

Tom Jensen from PPP suggests that all four states-- Arizona, Iowa, Missouri and North Carolina, none of which were looked at as possible wins by the vision-free DSCC-- ate becoming competitive because of "voter anger over their Republican senators’ unwillingness to consider a replacement for Antonin Scalia." That McCain, Blunt and Burr already had mediocre approval numbers exacerbates the problem these Republicans are now facing.

Strong majorities of voters in each of these states want the Supreme Court vacancy to be filled this year. It’s a 56/40 spread in favor of filling the seat in Iowa, 56/41 in Arizona and Missouri, and 55/41 in North Carolina. What’s particularly important in the numbers is the strong support for filling the seat among independents-- it’s 60/38 in Missouri, 59/37 in Arizona, 58/38 in Iowa, and 55/38 in North Carolina. Independent voters will be key to determining whether these incumbents sink or swim this fall, and they want the vacancy filled.

What voters especially have a problem with is Senate Republicans saying they’re going to reject President Obama’s nominee for the Supreme Court no matter who it is. Super-majorities of voters in all four of these states-- 69/25 in Arizona, 66/24 in Missouri, 66/25 in North Carolina, and 66/26 in Iowa say that the Senate should at least wait and see who’s put forward before deciding whether to confirm or deny that person. Even Republican voters-- 56/35 in Arizona, 54/38 in North Carolina, 52/37 in Missouri, and 50/39 in Iowa think their Senators are taking far too extreme of a position by saying they won’t approve President Obama’s choice without even knowing who that choice is.

The Supreme Court issue really could make a difference at the ballot box this fall. Voters by a 34 point margin in Arizona and Missouri, a 21 point margin in North Carolina, and a 14 point margin in Iowa say that they’re less likely to vote for their Republican Senators this fall if they refuse to confirm a nominee to the Supreme Court no matter who it is. This is again something where we find the Republican Senators could particularly pay a price with independent voters. Independents in Arizona say 61/18 they’re less likely to vote for John McCain because of this issue, and it’s 55/16 for Richard Burr with them in North Carolina, 55/20 for Roy Blunt with them in Missouri, and 48/24 for Chuck Grassley with them in Iowa.

First Arizona, where McCain is lucky enough to just have to deal with a weak challenge from an especially odious New Dem backbencher, Ann Kirkpatrick:

Second-- Iowa, where Grassley is far more vulnerable than Chuck Schumer and Jon Tester had decided. Hogg or Fiegen could beat him.

Third is Missouri, another state Schumer and Tester were ready to write off:

And last, here are the results from North Carolina, another state with a very weak Republican incumbent, Richard Burr, that Schumer and Tester were perfectly satisfied with ignoring, at least once they failed to persuade their favorite Blue Dog, Heath Shuler, to jump in.

Chuck Grassley's Obstructionist Role In Blocking President Obama's Judicial Nominee

Senatorial obstructionist clown show, Mitch and Chuck

If you've been following along with the news about President Obama replacing Supreme Court Justice Antonin Scalia, you no doubt noticed that the Republicans have dragged us to the brink of an unprecedented Constitutional crisis. As far as I can tell, this is the first time in the country’s history where a hyper-partisan gaggle of right-wing senators are blatantly and explicitly refusing to do the job the constitution assigns them of examining the president's judicial nominee.

Senate Majority Leader Mitch McConnell (R-KY) and Judiciary Committee Chair Chuck Grassley (R-IA), almost with minutes of Justice Scalia's death, said they would not consider anyone, no matter how qualified or how stellar, President Obama nominates. Now that is the kind of obstructionism that the American people are sick and tired of. McConnell and Grassley aren't being truthful when they claim that there have never been any election-year appointments to the Supreme Court.  In the past, six Supreme Court Justices have filled a vacancy during an election year, including Justice Anthony Kennedy, who was nominated by Reagan in November and confirmed by a Democratic-led Senate, 97-0, less than three months later (in February, 1988).

According to The Hill yesterday, some legal experts claim Senate Republicans are exceeding their constitutional powers by refusing to hold a hearing on President Obama's Supreme Court nominee. In a call with reporters, Erwin Chemerinsky, dean of the University of California Irvine School of Law, said Republicans’ decision not to hold a hearing, vote or even a meeting on the nominee is unprecedented. "I can’t identify any other instance where a Senate Judiciary [Committee] has ever said it wouldn’t hold a hearing," he said.

The 8 Republicans on the Senate Judiciary Committee who said they would ignore any nominee that President Obama asks them to consider were Chairman Grassley, Orrin Hatch (R-UT), Jeff Sessions (R-AL), Lindsey Graham (R-SC), John Cornyn (R-TX), Mike Lee (R-UT), presidential candidate Ted Cruz (R-TX), and Jeff Flake (R-AZ). None of these senators are in a vulnerable electoral situation this year-- either because they are not up for reelection, like Graham and Hatch, or because they represent a deep red state with a moribund Democratic Party, like Jeff Sessions and Mike Lee-- with one exception... Chairman Grassley of Iowa, a purple state.

As Carl Hulse reported today for the NY Times, "Grassley has seemed uneasy with the situation both in Iowa and in Washington. As photographers stalked him on Tuesday outside the Senate chamber, he raised a binder to cover his face before hurriedly retreating... 'Senator Grassley has surrendered every pretense of independence and let the Republican leader annex the Judiciary Committee into a narrow, partisan mission of obstruction and gridlock,' said Harry Reid." By this afternoon Reid and Grassley were in a public spat.

Grassley: "Childish tantrums aren't appropriate for the Senate."

Reid: "A childish tantrum? When we're asking him to do his job? He's chairman of a committee. He should hold hearings, report people out. By refusing to hold confirmation hearings for President Obama’s Supreme Court nominee, or hold a vote, they undermine the presidency, the Constitution and the United States Senate."

We asked Tom Fiegen, the progressive Democrat running for Grassley's seat, if Iowa voters are paying attention and if they're wondering why Grassley is putting a narrow partisan GOP ideology ahead of the best interests of the country, not to mention his own constitutional duty. Please take a look at what Tom had to say below and if you'd like to help his election, he's on the Blue America ActBlue page for candidates who have endorsed Bernie and are running on the same issues that have motivated his campaign. This is the link to that page.  

To Understand U.S. Senator Chuck Grassley, Follow The Money
-by Tom Fiegen,
Candidate for U.S. Senate, Iowa

Senator Grassley has declared in writing his refusal to interview a replacement judge for the vacancy on the Supreme Court. What's much more interesting is what's behind Chuck Grassley's obstructionism. We have to look behind the curtain to see who is pulling his strings. 

It's the big money contributors.

We're talking about really big money pulling Chuck Grassley's strings. It is the wealthiest of the wealthy, the one-tenth of 1% who consider an Obama Supreme Court nominee a profound threat to their grip on power. Bribes in the guise of campaign contributions might no longer work if the balance on the Supreme Court shifted.

These powerful oligarchs are the ones who really employ and pay Chuck Grassley. They have told him to do whatever it takes to preserve their power. A conservative Supreme Court has given the billionaires and oligarchs the political and economic power to run the country since Reagan. They don’t want to take a chance on losing that power. That’s why Chuck Grassley put his refusal to do his job in writing: to reassure the billionaires and the oligarchs that he is following their orders, not ours.

Senator Grassley’s written refusal to do his job is more than the usual partisan political games. This time, everything we care about as American citizens hangs in the balance as a 4 -4 split Supreme Court punts on all the important issues. Things like: police brutality, employer spying, Citizens United, government intrusion into our private lives, corporate fraud, unfair tax havens for the super-wealthy, poisons in our environment, and the very Constitution itself.  Leaving a vacancy on the Supreme Court for over a year will mean that our last line of defense against Big Brother government and the billionaire robber barons will be frozen in a perpetual 4 - 4 tie.

82 year old Senator Grassley is running for another six year term this year. Do we really want to reelect a career politican who is willing to put our Constitutional freedoms at risk to please his billionaire contributors?

My name is Tom Fiegen. I am running in the Democratic primary in Iowa to retire Chuck Grassley. I have spent my career representing working people. I am not taking super-PAC money. I am the son of sharecropper parents who worked hard to buy a farm of their own and then faced foreclosure during the Farm Crisis of the 1980s.  If you think a United States Senator should do their job, and represent the people, not the billionaires and the oligarchs, help me retire Chuck Grassley. As Bernie Sanders says, "enough is enough."

Has McConnell Inadvertently Boxed The Senate Republicans In On A Scalia Replacement?

Is Miss McConnell losing his touch? Scalia's corpse wasn't even cold yet-- and the GOP conspiracy theories about his death barely formed-- when he screwed up big time by announcing that President Obama would be barred by the Senate from appointing a replacement to the Supreme Court. Any replacement. That's not constitutional and it isn't even popular, except in the fever swamps of GOP extremism. Mainstream Republican senators have already started inching away from the crazy pronouncement, especially ones who are up for reelection in Novemberand want to appear vaguely non-obstructionist.

GOP-leaning polling firm, Rasmussen, polled the question of whether or not Obama should replace Scalia. The survey included just 3 questions:

• Should President Obama put off naming a replacement for Supreme Court Justice Antonin Scalia who died Saturday and let the next president make that nomination?

• Should the U.S. Senate reject or refuse to consider any Supreme Court nomination made by Obama to allow the next president to choose that nominee?

• How likely is that the Senate will approve the nomination of any candidate President Obama names to replace Scalia on the Supreme Court?

Apparently McConnell's crackpot statement didn't go over. The majority of Americans say Obama should nominate a replacement (43% disagree). An even bigger majority of Americans say McConnell as his obstructionist Senate Republicans should not reject or refuse to consider the nomination (35% agree with the Republican extremists that no matter the quality of the candidate, he or she should be blocked). Unfortunately most Americans feel that the Senate Republicans will block the nominee and 69% believe the GOP will make sure no Obama nominee is approved.

And last night Fox released another poll, even more damaging to McConnell and his obstructionist ilk. This one shows that 62% of Americans want Obama and the Senate to fill the Scalia vacancy now. Only 34%-- basically the hard-core GOP/racist base-- say Obama should not be allowed to make another Supreme Court nomination.

But most survey takers aren't nearly as insightful as the Washington Post's Gerg Sargent, who asserts Miss McConnell has led his crackpot caucus in a trap of their own making. He sites another national poll, this one from CBS News, that has some ominous data for Republicans to look at, namely that "Republican primary voters are split between Donald Trump (25 percent) and Ted Cruz (25 percent) over who is most trusted to make appointments to the Supreme Court. Moderates strongly favor Trump (27 percent), while conservatives favor Cruz, and those who consider themselves very conservative chose Cruz (38 percent) over Trump (19 percent)." And he then reports that senior Republicans are in the process of deciding that their best political move is not to give Obama’s nomination any consideration at all, "that denying a hearing to Obama’s choice would allow them to better make the case that voters should have a say in the next Supreme Court justice-- not members of the Senate and a lame-duck president. If Republicans held confirmation proceedings, several Republicans told CNN, that argument would be badly muddied. Moreover, they risk giving Obama’s choice an opportunity to detail his or her life story and legal qualifications, and they’d rather stop the nominee before giving the White House and Senate Democrats a chance to build momentum."

Perfect: If the American people get real exposure to Obama’s nominee, it might make it harder for us to vote No, so better not to allow any exposure at all! Now, as I noted yesterday, Republicans are under no obligation to consider and vote on Obama’s nominee. This is a political fight that will turn on perceived norms. The only way Democrats can force Republicans to cave here is by successfully portraying the GOP refusal to consider any nominee as so deeply unreasonable and dysfunctional that Republicans decide they’re sustaining too much damage among swing voters to continue holding out.

But both the new CBS poll and the new NBC poll show the American people are almost exactly split on this question right now. Both find that more than eighty percent of Republicans don’t think Obama should get to choose Scalia’s replacement. Meanwhile, conservative talk radio hosts are already defining any consideration of Obama’s nominee as surrender. So you’d think that if Republicans allow hearings, whether or not they actually intend to evaluate Obama’s pick on the substance, the spectacle itself would only help Trump and/or Cruz, which senior Republicans don’t want to do.

Additionally, per CNN’s reporting above, the problem for Republicans is also that, if they do go through the motions of giving Obama’s choice a hearing, it will allow the voters to learn more about that person, which could risk requiring them to oppose someone the public comes to support. (Backing Obama’s nominee is apparently a self-evident impossibility.) So the only way out might be to do nothing. The question will then be whether Democrats can extract serious, lasting political pain from it.

So that is at oddds with the theory that McConnell and the Senate Republicans were whining and wailing to get Obama to pick a business-friendly moderate and not a real progressive. The thing is, Obama always picks business-friendly moderates and his immediate (albeit so far not publicly announced) choice was Sri Srinivasan, a centrist who progressives aren't celebrating-- and a lot more to GOP liking than anything Bernie-- and a Democratic-controlled Senate-- will come up with in 2017. If you'd like to help replace McConnell as Majority Leader of the Senate, help elect more progressive Democrats-- here are the 4 best running this year, no conservatives, no corrupt Schumercrats, just the best candidates Team Blue has for 2016.

Obama Will Be The ONLY Black President To Ever Try To Name A Supreme Court Justice In His Final Year!

In the video above, Ted Cruz is lying his ass off, not because he expects anyone sane will believe him, but because the South Carolina Republican presidential primary is coming up. McConnell, Jeb Bush, Rubio, Herr Trumph, Chuck Grassley and lots of other high profile Republicans have demanded President Obama not appoint a replacement for far right Supreme Court Justice Antonin Scalia. Rubio was on Meet the Press Sunday either demonstrating his ignorance or just lying to the viewers. "Both parties have followed this precedent. There comes a point in the last year of the president, especially in their second term, where you stop nominating, or you stop the advice and consent process."

PolitiFact, which is based in Tampa and knows Rubio well, rated this a flat-out lie. They pointed out that "the scenario that Rubio is describing-- a Supreme Court vacancy in the last year of a presidency-- is pretty rare to begin with. Since 1900, it’s only happened once to a 'lame duck' president, and twice more to presidents who lost re-election bids."

All three times, the exiting president made nominations:

• 1968: President Lyndon Johnson-- who announced he would not run for re-election-- nominated Associate Justice Abe Fortas as Chief Justice and Homer Thornberry to fill Fortas’ vacancy. Fortas’ nomination failed, Thornberry withdrew his nomination and Chief Justice Earl Warren remained on the bench, delaying his retirement.

• 1932, President Herbert Hoover nominated Benjamin Cardozo. Hoover lost to Franklin Delano Roosevelt.

• 1912: President William Taft successfully nominated Mahlon Pitney to the Supreme Court. Taft lost to Woodrow Wilson.

Three other presidents made successful Supreme Court nominations while running for re-election, but unlike Taft and Hoover, they won another term:  

• 1956: Dwight Eisenhower made a recess appointment of William Brennan.

• 1940: Franklin Delano Roosevelt nominated Frank Murphy.

• 1916: Woodrow Wilson nominated John Clarke and Louis Brandeis.

...We rate Rubio’s claim False.

NY Times reporter Nate Cohn reported how likely Republican intransigence could impact several important Senate races. He asserts that blue and purple state Republican senators up for reelection-- Ayotte (NH), Kirk (IL), Johnson (WI), Toomey (PA) and Portman (OH)-- are going to be under intense pressure to not go along with GOP threats to automatically block any nominee, no matter how qualified, who comes from Obama. Obama is almost certain to nominate a moderate, not a liberal, and his likely choice is Sri Srinivasan, was confirmed by the Senate to the Court of Appeals for the DC Circuit on May 23, 2013 by a vote of 97-0. Voting YES were Ayotte, Kirk, Johnson, Toomey and Portman-- as well as Cruz, Rubio, McConnell and Grassley. There is no rational case to be made that he's outside the mainstream or too liberal. If anything, progressives may grouse he's too much of a centrist!

What all of these vulnerable senators have in common is that their success depends on winning a fair share of relatively moderate voters who traditionally vote Democratic in presidential elections. All of the Republicans won in no small part by faring better than Republican presidential candidates usually do in socially moderate areas, like the suburbs around Philadelphia, Columbus and Chicago. Rob Portman, the Ohio senator up for re-election, won Columbus’s Franklin County by three percentage points, a county Mr. Obama would carry by 23 percentage points in 2012.

Portman's press statement aped McConnell's nonsense about how Obama shouldn't nominate anyone. "I believe the best thing for the country is to trust the American people to weigh in on who should make a lifetime appointment that could reshape the Supreme Court for generations. This wouldn't be unusual. It is common practice for the Senate to stop acting on lifetime appointments during the last year of a presidential term, and it's been nearly 80 years since any president was permitted to immediately fill a vacancy that arose in a presidential election year."

Monday morning the progressive Democrat running against Portman, P.G. Sittenfeld was all over it. "Sen. Portman is simply wrong. President Obama has a constitutional duty to fill vacancies on the court-- and since there are over 300 days left in his term, it would be irresponsible of him not to make a nomination-- and equally irresponsible for the Senate not to act on that nomination. In fact, refusing to hold hearings or schedule a vote on the president's nominee-- simply because the vacancy occurred in an election year-- would put the Senate in violation of both historical precedent and the clear language of the Constitution itself. Article II says the president 'shall' nominate Judges of the Supreme Court; it does not say 'except in election years.' Which is precisely why a Democratically-controlled Senate confirmed President Reagan's nomination of Justice Kennedy to the Court by a vote of 97-0 in 1988-- which, of course, was also an election year and the last year of Mr. Reagan's presidency."

But what Portman, McConnell, Cruz, Rubio and the rest of the goons are saying that there should be no 9th (tie-breaking) Justice on the Court for a year, until the next president takes office (339 days), actually a lot more than that because after Bernie or Hillary is elected it would probably take at least two months to get someone nominated and confirmed-- and if the Republicans keep control of the Senate, far, far longer.

Despite McConnell's and Grassley's and the candidates' posturing, there is clear precedent for confirming a nominee in an election year, even when the Senate is not controlled by the President’s party. Anthony Kennedy, for example, was nominated by President Reagan in November, 1987 and the Senate, which was controlled by Democrats, took up the nomination immediately and confirmed him in two months-- despite the Christmas/New Year break. What bodes badly though is that the last 11 times the Senate confirmed a Supreme Court justice nominated by a president of the opposite party, it’s been Democrats confirming a Republican nominee.

• Clarence Thomas, confirmed in 1991
• David Souter, confirmed in 1990
• Anthony Kennedy, confirmed in 1988
• John Paul Stevens, confirmed in 1975
• William Rehnquist, confirmed in 1971
• Lewis Powell, confirmed in 1971
• Harry Blackmun, confirmed in 1970
• Warren Burger, confirmed in 1969
• Charles Whitaker, confirmed in 1957
• William Brennan, confirmed in 1957
• John Marshall Harlan, confirmed in 1955

Elizabeth Warren sent an open message to Mitch McConnell after he's statement started this firestorm of Republican obstructionism. "President Obama is still the President of the United States. If some Senators don’t like the person that President Obama nominates, they can make their case to the American people and vote no. But it would be arrogant and irresponsible for Senate Republicans to preemptively paralyze the nomination process laid out by our Constitution – before President Obama even announces a nominee-- simply because they don’t like the guy who was elected to do the nominating. Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that-- empty talk."

Ironically, just as Warren was issuing her statement, Alan Grayson sent an open letter to President Obama urging him to nominate Warren to the Supreme Court:

Dear Mr. President, please appoint Elizabeth Warren to the Supreme Court, before the end of the week.


Why Elizabeth Warren? She started waiting tables at the age of 13, a year after her father was driven into poverty by a heart attack followed by huge medical bills. She later taught children with disabilities. She was a Harvard Law Professor for almost two decades-- in fact, the only one there with tenure who had attended a public university. Her scholarly work is renowned; she is one of the most frequently cited law professors of all time.

She has been an indefatigable watchdog over the capital markets for almost a decade, going back to her extraordinarily valuable work on the Congressional Oversight Panel for the federal bailout program. She created the Consumer Financial Protection Bureau, even though the Senate Republicans wouldn’t let her run it. She electrified the nation with her “you didn’t build that” speech. And she has been a tireless and effective U.S. Senator.

Fourteen Senators and 17 Congressman have been appointed to the Supreme Court. So it wouldn’t be the first time this happened.

One more thing: Senator Warren is an outstanding writer and communicator, something that the Supreme Court badly needs. (Justice Scalia recently attacked a colleague for a writing style “as pretentious as it [is] egotistic.”) In my opinion, the two best judicial writers of my lifetime are Justice Hugo Black, a former Senator, and Judge Abner Mikva, a former Congressman. (I worked with Mikva; I know what I’m talking about.) Serving in either House of Congress is a very effective lesson in communication.

Would obstructionists in the Senate filibuster an Elizabeth Warren appointment, or vote against her? Maybe. But that seems like poor form against one of their own, for a place as clubby as the U.S. Senate.

And the President should appoint Warren right now, before the end of this week. That would make it a “recess appointment,” and Justice Warren could take office immediately. The obstructionists in the GOP couldn’t do anything about it.

One last reason why Elizabeth Warren should be on the U.S. Supreme Court:

She’s earned it. She deserves it. And she’ll be so, so good at it.

Lindsey Graham, who never got above 2% in Republican polling when he ran for president announced that he would vote YES if President Obama nominated far right Republican Senator Orrin Hatch of Utah. Very strange bunch, these Republicans!

Let's make sure the next Supreme Court nominee isn't nominated by a Trumpf, Cruz or Rubio-- by tapping on the thermometer: