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9 minutes ago, eatcorn said:

Either way, I think we can all agree that the normal nomination process should proceed. Right?

Absolutely.  And it will.  The posturing of both sides will do nothing to stop the President from nominating a successor, and it will do nothing to force the Senate to confirm any particular one.

The normal nomination process should and will proceed.  We shall see what comes of it.

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32 minutes ago, JDaveG said:

It really isn't.  Remember when Charles Schumer said in 2007 the Senate should "reverse the presumption of confirmation" and refuse to confirm any more Bush nominees to the Supreme Court absent extraordinary circumstances?  Remember when Obama, Biden, Clinton, Kerry and numerous other Democrats not only promised, but actually voted to filibuster the Alito nomination?

Remember when you supported the Democrats blocking the Harriet Miers nomination, which ironically brought us the Alito nomination and subsequent filibuster vote to begin with?

Pretending this is just about "right now" conveniently ignores the history that brought us to "right now."  Confirmations have been one-sided for years.  Wasn't it you that pointed out Kennedy's confirmation in February of 1988, an election year?  That's an interesting example, given how Kennedy came to be nominated in the first place.  His predecessor, Lewis Powell, retired in June of 1987.  Remember why it took so long for Kennedy to get confirmed?  Remember that he was the THIRD appointee Reagan nominated?

This is exactly about the "'both sides do it' thing."  One side seems to think it's horrible when the other side does it, but conveniently it's the same side that has been doing it for years.  This is expected, unsurprising, and if it is "ridiculous," it's no more so than what Democrats have been doing for over 30 years now.  Frankly, it's about time the Republicans grew a pair on this issue.

Here's the full context of that quote:

https://www.schumer.senate.gov/newsroom/press-releases/schumer-declares-democrats-hoodwinked-into-confirming-chief-justice-roberts-urges-higher-burden-of-proof-for-any-future-bush-nominees

Notice that he is talking about the criteria used by Senators to judge the ideology of the nominee, saying that the presumption of confirmation should be replaced with skepticism about the nominee's answers during the hearing.  He is essentially saying, "we can't trust answers that might have been coached" and should vote against nominees that don't have a track record on issues.  All of that is talking about how he would vote on a confirmation.  Nowhere did he (or any Democrat that I'm aware of) say that the president's nominee should not even get a hearing in the first place, which is what Grassley and McConnell have said.  That is the part that is different - announcing in advance that the nominee won't even be considered, whomever it might be.

I don't agree with Schumer's approach.  And as I've said twice already, I don't agree at all with filibustering nominees of any stripe.  I don't even support filibustering legislation.  I said this when Democrats were in the majority and I said it immediately after Republicans took the majority recently.  But Schumer's reasoning was not the same as what's being articulated by GOP Senators today. 

My problem with Harriett Miers - which was voiced by several Republicans at that time as well - had to do with her qualifications and lack of experience with Constitutional Law.  Tom Coburn said that she had "flunked" during her confirmation process.  The Judiciary Committee had to actually request that she resubmit her answers to their questions beause they were so poorly done.  Lindsey Graham and Sam Brownback expressed skepticism and opposition to her nomination, as well.  That had nothing to do with ideology.  That was straight up a case of Bush nominating someone who wasn't qualified for the position.  And a lot of Republicans - including prominent conservatives - agreed with my assessment on that.

Regarding Kennedy, after opposition to Robert Bork (who got a hearing and a vote, at least), Reagan nominated Douglas Ginsburg who had to with withdraw because of marijuana use while he was a professor at Harvard.  Kennedy was nominated on November 30 and got a vote on February 3rd, which was unanimous.  Nowhere in this process were Democrats dragging out the process to prevent Reagan from appointing someone to replace Powell.  

The only thing close to what we're seeing is the use of the filibuster for Supreme Court nominees by Obama, Schumer, Biden, and others.  Those were based on ideological reasons, not an argument that the president should never be able to replace a SC justice during his last year in office.  Again, what is different now is that Republicans are asserting a general, overarching rule that presidents are not allowed to replace SC justices during their last year in office.  That's not something Democrats have done in the past, at least nobody has provided evidence that they've made such claims and actually claimed ahead of time that all nominees would be denied a hearing.  

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1 minute ago, Leon Troutsky said:

The only thing close to what we're seeing is the use of the filibuster for Supreme Court nominees by Obama, Schumer, Biden, and others.  Those were based on ideological reasons, not an argument that the president should never be able to replace a SC justice during his last year in office.  Again, what is different now is that Republicans are asserting a general, overarching rule that presidents are not allowed to replace SC justices during their last year in office.  That's not something Democrats have done in the past, at least nobody has provided evidence that they've made such claims and actually claimed ahead of time that all nominees would be denied a hearing.  

Perhaps, but I have little doubt that if George W. Bush were in his last year, that Democrats would use the same justification that Republicans are using now.

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Just now, eatcorn said:

Perhaps, but I have little doubt that if George W. Bush were in his last year, that Democrats would use the same justification that Republicans are using now.

I don't doubt that either, as I said in a previous post.  It's a case of the out party continuing to push the limits of obstruction.  Whichever party is doing it, this is a very different claim than what's been done in the past and one that has pretty serious implications.  

 

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After Bork we have this:

 

Bush the Elder:

David Souter - confirmed 90–9

Clarence Thomas - confirmed 52–48

 

Clinton:

Ruth Bader Ginsburg - confirmed 96-3

Stephen Breyer - confirmed 87-9

 

Bush the Younger:

John Roberts - confirmed 78–22

Samuel Alito - confirmed after filibuster threat and blocked prior nominee 72-25

 

Obama:

Sonia Sotomayor - confirmed 68–31

Elena Kagen - confirmed 63-37

 

So you can see the ongoing politicization of the process.  This isn't new.  It isn't exciting.  It certainly isn't unprecedented.  If anything, Republicans have, 29 years after the fact, finally figured out that the rules of the game have changed.

As to ideology, if President Obama wants to put up a palatable Republican nominee, I bet that nominee would be confirmed.  So it's all based on ideology.  The Republicans don't want to wait because it's an election year.  They want to wait because it's an election year and the President is a Democrat and the recently deceased justice is very conservative.  If Clinton or Sanders wins, they won't be saying "wait until 2020."

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4 minutes ago, JDaveG said:

After Bork we have this:

 

Bush the Elder:

David Souter - confirmed 90–9

Clarence Thomas - confirmed 52–48

 

Clinton:

Ruth Bader Ginsburg - confirmed 96-3

Stephen Breyer - confirmed 87-9

 

Bush the Younger:

John Roberts - confirmed 78–22

Samuel Alito - confirmed after filibuster threat and blocked prior nominee 72-25

 

Obama:

Sonia Sotomayor - confirmed 68–31

Elena Kagen - confirmed 63-37

 

So you can see the ongoing politicization of the process.  This isn't new.  It isn't exciting.  It certainly isn't unprecedented.  If anything, Republicans have, 29 years after the fact, finally figured out that the rules of the game have changed.

As to ideology, if President Obama wants to put up a palatable Republican nominee, I bet that nominee would be confirmed.  So it's all based on ideology.  The Republicans don't want to wait because it's an election year.  They want to wait because it's an election year and the President is a Democrat and the recently deceased justice is very conservative.  If Clinton or Sanders wins, they won't be saying "wait until 2020."

You're right about the ongoing politicization of the judicial process, and both sides are responsible for that.  That's why I said this is about the out party pushing the boundaries of obstructionism.  

But this is different in the sense that a general rule is being put out there that no president can ever replace a SC justice during an election year.  As I pointed out, that blocks off at least 25% of the president's term in office and perhaps 50% of it.  It's a very bad idea.

I hope that you're right that Republicans will consider a qualified, non-ideologically extreme candidate.  But all the things we're hearing now - including Grassley's threat to not even allow a hearing - is that they will block any nominee regardless of who it is.  

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10 minutes ago, Leon Troutsky said:

You're right about the ongoing politicization of the judicial process, and both sides are responsible for that.  That's why I said this is about the out party pushing the boundaries of obstructionism.  

But this is different in the sense that a general rule is being put out there that no president can ever replace a SC justice during an election year.  As I pointed out, that blocks off at least 25% of the president's term in office and perhaps 50% of it.  It's a very bad idea.

I hope that you're right that Republicans will consider a qualified, non-ideologically extreme candidate.  But all the things we're hearing now - including Grassley's threat to not even allow a hearing - is that they will block any nominee regardless of who it is.  

To be clear, I didn't say they'd consider a qualified, non-ideologically extreme candidate.  I said they'd confirm a qualified Republican oriented candidate.

I don't think they're going to approve anyone President Obama would like.  And given the history, I don't blame them.

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1 minute ago, JDaveG said:

To be clear, I didn't say they'd consider a qualified, non-ideologically extreme candidate.  I said they'd confirm a qualified Republican oriented candidate.

I don't think they're going to approve anyone President Obama would like.  And given the history, I don't blame them.

Actually, the history is that presidents and Congress negotiate on moderate candidates when there is divided government.  The Senate rejected Bork, but approved of Kennedy.  There's not a history of the Senate dictating to the president the ideology of the nominee, let alone wholesale blocking all nominees before the president has even announced them.  

You realize the precedent this is going to set for all future presidents, right?  This is basically saying that Republicans are justified in demanding a conservative Republican nominee from a Democratic president.  Would you have been okay with Democrats demanding a liberal nominee from Bush to replace O'Connor?  Would you say they were justified for blocking all nominees that weren't liberal?

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31 minutes ago, Leon Troutsky said:

Actually, the history is that presidents and Congress negotiate on moderate candidates when there is divided government.  The Senate rejected Bork, but approved of Kennedy.  There's not a history of the Senate dictating to the president the ideology of the nominee, let alone wholesale blocking all nominees before the president has even announced them.  

You realize the precedent this is going to set for all future presidents, right?  This is basically saying that Republicans are justified in demanding a conservative Republican nominee from a Democratic president.  Would you have been okay with Democrats demanding a liberal nominee from Bush to replace O'Connor?  Would you say they were justified for blocking all nominees that weren't liberal?

I don't see it as a precedent being set.  I see it as a precedent being followed.  The Republicans have essentially rolled over on nominees pre-Obama, and realistically under him as well, though the votes tightened.  The Democrats, by contrast, have consistently thrown up roadblocks to Republican nominees.

There isn't a precedent of the Senate dictating to the president the ideology of the nominee?  What do you think happened with Bork?  That's exactly what the Senate did.  And they got Kennedy.  Are you suggesting Bork, or Thomas, or Alito, are any more ideologically extreme than Ginsburg?  And yet Ginsburg could barely muster any "no" votes.  Replace Kennedy's votes with Bork's and tell me what the Court looks like today.

The Republicans are playing the game.  They didn't dictate the rules, but I have no problem at all with what they are doing.  Because the Democrats are going to do it anyway.  They always have.  Sometimes it works (Bork), sometimes it almost works (Thomas), sometimes it fails (Alito).  But both sides need to play the same game or one side always wins, and Republicans have rolled over on every Democratic nominee since, well, I guess since Johnson, since Carter didn't have any.  That's going back since before I was born.  Am I okay with it?  No, not really.  But I'm a realist when it comes to how the system has been played by one side for 30 years.  It's frankly about time the Republicans started dishing back some of that medicine.  The Court is bound to become more ideologically slanted over time if they don't.  The fact that some folks want it to be, or consider it to be slanted the other way already, is of no import to me.  All I want is everyone to play the same game.  The process will sort out the rest.

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5 minutes ago, JDaveG said:

I don't see it as a precedent being set.  I see it as a precedent being followed.  The Republicans have essentially rolled over on nominees pre-Obama, and realistically under him as well, though the votes tightened.  The Democrats, by contrast, have consistently thrown up roadblocks to Republican nominees.

There isn't a precedent of the Senate dictating to the president the ideology of the nominee?  What do you think happened with Bork?  That's exactly what the Senate did.  And they got Kennedy.  Are you suggesting Bork, or Thomas, or Alito, are any more ideologically extreme than Ginsburg?  And yet Ginsburg could barely muster any "no" votes.  Replace Kennedy's votes with Bork's and tell me what the Court looks like today.

The Republicans are playing the game.  They didn't dictate the rules, but I have no problem at all with what they are doing.  Because the Democrats are going to do it anyway.  They always have.  Sometimes it works (Bork), sometimes it almost works (Thomas), sometimes it fails (Alito).  But both sides need to play the same game or one side always wins, and Republicans have rolled over on every Democratic nominee since, well, I guess since Johnson, since Carter didn't have any.  That's going back since before I was born.  Am I okay with it?  No, not really.  But I'm a realist when it comes to how the system has been played by one side for 30 years.  It's frankly about time the Republicans started dishing back some of that medicine.  The Court is bound to become more ideologically slanted over time if they don't.  The fact that some folks want it to be, or consider it to be slanted the other way already, is of no import to me.  All I want is everyone to play the same game.  The process will sort out the rest.

That's not factually true according to the information you posted above.  Republicans didn't "roll over" for Sotomayor or Kagan:

Sotomayor: All but nine Republicans voted against her.  That's nearly 80% of Republicans opposed.

Kagan: All but five Republicans voted against her.  That's about 88% of Republcian opposed.

In contrast, Democrats have not "consistently thrown up roadblocks".  

Roberts: 22 Democrats voted yes and 22 voted no, so that's 50% opposition among Democrats.

Alito: Won with a 58-42 vote (your info above is wrong).  4 Democrats voted yes and 41 voted no, so that's about 92% opposition among Democrats.  On par with Republican opposition to Kagan.

You keep mentioning Bork, but fail to acknowledge that Democrats did not demand a DEMOCRATIC justice.  They fought against what they viewed as a hard-right nominee in favor of a more moderate center-right one with Kennedy, who they passed virtually unanimously.  So it wasn't Democrats saying, "give us a liberal nominee or we'll block everyone until the next election".  It was them fighting for a moderate nominee during a period of divided government, exactly what I described as the history of these types of nominations.

What you think is appropriate based on your previous post is that Republicans get a conservative Republican nominee from a Democratic president.  There is no modern precedent for that.  It's beyond "playing the game".  It's beyond "Republicans started dishing back some of that medicine".  You are claiming that the Republicans would be justified in blocking all nominees that are not conservative Republican ones.  Where can you point in recent history where Democrats have made such a demand?

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2 hours ago, eatcorn said:

Either way, I think we can all agree that the normal nomination process should proceed. Right?

You would think, but sadly no, we don't all agree, as demonstrated by Chuck Schumer in this speech from 2007. This the same Chuck Schumer crying about GOP obstructionism to anyone who would listen regarding this confirmation yesterday.

1:55 for the money shot, but the whole thing in context is just as hypocritical

17 hours ago, Leon Troutsky said:

So a president should delay a Supreme Court nomination for over a year because it might change the balance of the Court.  When has that ever been part of the nominating process?

The president is elected by the public and part of his Constitutional responsibilities involves nominating Supreme Court candidates.  Your personal views about the balance of the Court isn't a justification for the president to leave that vacancy on the possible chance that the next president will appoint a conservative.  And what if the Democrats win in November and the next president nominates someone who will change the balance of the Court anyway?  You've left the vacancy for an entire year for nothing.

 

17 hours ago, falconsd56 said:

 

To a degree yes  but  I have yet to Democrats ever say  that a sitting republican president  should just not even try to fill the spot because they will not even vote on it.

McConnell is basically using his  idea of making Obama a one term president in a different way.

:lol::lol:

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2 minutes ago, silentbob1272 said:

You would think, but sadly no, we don't all agree. 

At least not if the president is of the opposition party

1:55 for the money shot, but the whole thing in context is just as hypocritical

 

:lol::lol:

See my 2 or 3 posts about the context of those statements along with a link to the full statement.  Dude's an ***hole to be sure.  But the full context is different from what we're seeing now.  He's talking about not trusting testimony at hearings as a guide to ideology on the bench, and not giving nominees the benefit of the doubt when there is a lack of background on the nominees.  As I said before, I don't support that.  But he's not saying that any and all Bush nominees should be blocked regardless of who the person is.  Nor is he saying that any and all nominees should not even get a hearing or a vote by the Senate.  

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27 minutes ago, JDaveG said:

I don't see it as a precedent being set.  I see it as a precedent being followed.

Also, what precedent is there for the out party to wholesale block all nominees during an election year?  Did that happen under Reagan?  H.W. Bush?  W. Bush?  

Where is the precedent that the president is not allowed to even get consideration of his nominees during an election year?

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8 minutes ago, Leon Troutsky said:

That's not factually true according to the information you posted above.  Republicans didn't "roll over" for Sotomayor or Kagan:

Sotomayor: All but nine Republicans voted against her.  That's nearly 80% of Republicans opposed.

Kagan: All but five Republicans voted against her.  That's about 88% of Republcian opposed.

Did they filibuster?  They didn't have the votes to block it outright, that's true.  But they didn't filibuster, and they didn't hold a vote to filibuster.

Could they have?  President Obama thought so when the shoe was on the other foot.

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14 minutes ago, Leon Troutsky said:

What you think is appropriate based on your previous post is that Republicans get a conservative Republican nominee from a Democratic president.  There is no modern precedent for that.  It's beyond "playing the game".  It's beyond "Republicans started dishing back some of that medicine".  You are claiming that the Republicans would be justified in blocking all nominees that are not conservative Republican ones.  Where can you point in recent history where Democrats have made such a demand?

What I think is appropriate is that qualified nominees get approved.  But appropriate sailed out the window with Bork's funny goatee.  

So we live in the world we live in, a world where Democrats obstruct and roadblock Republican nominees to the Supreme Court and Republicans talk a lot of **** but never do anything.  Now that they're doing something you think they're ***holes.  Well, that's probably right, but as I told opposing counsel in a case once, I've been nice the whole time, and you've been an ***hole, and we can both be nice, or we can both be ***holes, but there is not a set of circumstances where you get to be an ***hole and I'm going to continue being nice.

That's where we are.  You seem to think it's so far beyond the pale.  I think it's chickens coming home to roost.

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1 minute ago, JDaveG said:

Did they filibuster?  They didn't have the votes to block it outright, that's true.  But they didn't filibuster, and they didn't hold a vote to filibuster.

Could they have?  President Obama thought so when the shoe was on the other foot.

We're not talking about the filibuster, which I oppose and think is a very bad idea generally...as I've said probably four times already in these threads.

We're talking about Republicans claiming that no president can ever fill a SC vacancy during an election year.  

And you said that Republicans would be justified in blocking any nomination that isn't a conservative Republican justice.

Where is the precedent for either of those things, by Democrats or Republicans?  

The bad precedent I'm talking about is blocking off 25% of a president's term of office (and possibly 50%) and saying he cannot replace SC justices during that period of time.  

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Just now, Leon Troutsky said:

We're not talking about the filibuster, which I oppose and think is a very bad idea generally...as I've said probably four times already in these threads.

We're talking about Republicans claiming that no president can ever fill a SC vacancy during an election year.  

And you said that Republicans would be justified in blocking any nomination that isn't a conservative Republican justice.

Where is the precedent for either of those things, by Democrats or Republicans?  

The bad precedent I'm talking about is blocking off 25% of a president's term of office (and possibly 50%) and saying he cannot replace SC justices during that period of time.  

Do you SERIOUSLY think they'd be saying that if, say, Ginsburg retired or passed away?

This isn't about blocking off his term.  It's 100% about ideology.  They want another justice like Scalia to replace him.  Same as the Democrats wanted with Powell, and O'Connor, etc.  And, notably, Clarence Thomas, who replaced Thurgood Marshall.  That doesn't mean the Republicans will win in that effort (the Democrats didn't with Thomas), but let's not oversimplify it.  This is about who is being replaced, not that someone is being replaced at all.

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5 minutes ago, JDaveG said:

What I think is appropriate is that qualified nominees get approved.  But appropriate sailed out the window with Bork's funny goatee.  

So we live in the world we live in, a world where Democrats obstruct and roadblock Republican nominees to the Supreme Court and Republicans talk a lot of **** but never do anything.  Now that they're doing something you think they're ***holes.  Well, that's probably right, but as I told opposing counsel in a case once, I've been nice the whole time, and you've been an ***hole, and we can both be nice, or we can both be ***holes, but there is not a set of circumstances where you get to be an ***hole and I'm going to continue being nice.

That's where we are.  You seem to think it's so far beyond the pale.  I think it's chickens coming home to roost.

The "something" they are doing is claiming that presidents cannot fulfill SC vacancies for a quarter of their term in office.  You are getting wrapped up in the "well both sides do it so everything is fair game now" mindset.  You are ignoring the very bad consequences of the precedent they are wanting to set (and you are apparently supporting).  

Some of them want to filibuster?  Fair game.  I oppose it, but it's what Democrats have done in the past.  Make an ideological test to prevent a progressive justice from being appointed?  Fair game.  I actually don't mind that so much given that Republicans do control the Senate.  

Create a precedent that no president can ever fulfill a vacancy for a quarter or even half of his term in office?  That's a ridiculous idea that has no equivalency in modern times.

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7 minutes ago, JDaveG said:

They want another justice like Scalia to replace him. 

Are we really entertaining the idea that there will ever be anybody like Scalia? As much as I truly disliked the guy, his prose was unrivaled and the way he got to some of his conclusions, seemingly  illogical at times, somehow always managed to fit into his narratives (kinda). 

Nonetheless, RIP to a man that will not soon be forgotten by any legal scholar. 

For better or worse, there will never be another Scalia. 

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3 minutes ago, JDaveG said:

Do you SERIOUSLY think they'd be saying that if, say, Ginsburg retired or passed away?

This isn't about blocking off his term.  It's 100% about ideology.  They want another justice like Scalia to replace him.  Same as the Democrats wanted with Powell, and O'Connor, etc.  And, notably, Clarence Thomas, who replaced Thurgood Marshall.  That doesn't mean the Republicans will win in that effort (the Democrats didn't with Thomas), but let's not oversimplify it.  This is about who is being replaced, not that someone is being replaced at all.

Of course they're driven by raw political calculations and wouldn't be making this ridiculous argument if Ginsburg had retired.  

But they ARE justifying the political calculation using this general notion of "presidents don't nominate SC justices during their last term in office", and the idea of delaying a nomination for an entire year on the hopes of winning the next election WILL set a precedent for all future Senates to follow.

The next time we have divided government, and a SC vacancy opens, the Senate will have precedent to delay that nomination until after the next election.  That will absolutely apply to the fourth year of a president's term as well as his eighth year.  And it could be used to justify delaying a nomination until after a midterm election to see how the Senate elections go.  

And that is a terrible precedent to set for future presidents of any party.

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8 minutes ago, Leon Troutsky said:

Of course they're driven by raw political calculations and wouldn't be making this ridiculous argument if Ginsburg had retired.  

But they ARE justifying the political calculation using this general notion of "presidents don't nominate SC justices during their last term in office", and the idea of delaying a nomination for an entire year on the hopes of winning the next election WILL set a precedent for all future Senates to follow.

The next time we have divided government, and a SC vacancy opens, the Senate will have precedent to delay that nomination until after the next election.  That will absolutely apply to the fourth year of a president's term as well as his eighth year.  And it could be used to justify delaying a nomination until after a midterm election to see how the Senate elections go.  

And that is a terrible precedent to set for future presidents of any party.

Everybody knows presidents do nominate SC justices in their last year in office.  The political play is transparent.  So let's talk about what they're actually doing instead of pretending they'd have an issue if we were talking about replacing Breyer instead of Scalia. 

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