Death of a Justice

With the death of Supreme Court Justice Antonin Scalia, the November election may decide the fate of all three branches of the United States government. That's a pretty unique situation, and it may boost turnout on both sides of the aisle. In most presidential elections, there's a wonky argument to be made about Supreme Court picks, but it's not usually so front-and-center with most of the voting public. Hardcore partisans tend to care deeply about this kind of thing, but the average voter usually doesn't think about it all that much in the voting booth. This year, things will obviously be different.

If the next nine months go as expected, President Obama will nominate an eminently-qualified person to the highest bench, and the Senate will either ignore him or vote his nominee down. Republicans from Mitch McConnell on down wasted no time upon hearing of Scalia's demise to loudly proclaim that: (1) Obama shouldn't even nominate anyone, he should just hand off the nomination to the incoming president at the end of his term; and (2) any Obama nominee simply would not be confirmed, no matter his or her qualifications for the job.

This, while entirely expected, is amusing and ironic for a very basic reason. Scalia, of course, was all about the "original intent" of the United States Constitution. Republicans have all but sanctified the document -- and Scalia's "originalism" -- in their rhetoric. However, the Constitution actually has no passage in it which states that presidents only get three out of their four years to nominate judges. In fact, the language is pretty unequivocal: the president "shall nominate." Not "has the option to nominate" or "shall nominate, except when politically problematic," or any other such nonsense. Obama has not only the right to nominate whomever he wishes to replace Scalia, it is in fact his sworn duty to do so. Democrats will, no doubt, be reminding all those originalist Republicans about this language in the months to come. Any Republican suggesting that Obama should just refuse to make a nomination is actually arguing for Obama to ignore the Constitution -- something that, normally, makes them quite upset.

The other amusing and ironic detail was laid bare by Harry Reid, a while back. The filibuster is also not in the Constitution. It's just a Senate rule, and Senate rules can change at any time. But there's a very strong originalist argument that if the Founding Fathers had intended to require a supermajority for the Senate to act (whether on presidential nominations or on legislation itself), then they would have clearly included it in the Constitution. They didn't. Filibusters are not "unconstitutional" (the Constitution states that the chambers of Congress can decide upon their own rules), but the concept is definitely not part of the original document's intent. Reid incensed Republicans with the so-called "nuclear option," when he essentially tossed out the concept of the filibuster -- but only in specific cases. The filibuster still remains for all legislation. But presidential appointees now only have to clear the Senate with a majority vote. Cabinet members, ambassadors, and judges now get up-or-down votes, and a majority confirms them. However, what few noticed back when Reid pulled the "nuclear trigger" is that the rule change specifically omitted Supreme Court nominees. They still can be filibustered. And now that Mitch McConnell leads the Senate, that rule isn't going to change any time soon.

If Republicans do block any Obama nominee, the likely result is a very long period of time with a hobbled high court. There are nine months until the presidential election. There are eleven months until a new president will be sworn in. And even with a friendly Senate, Supreme Court nominations take a goodly amount of time. The Supreme Court's term runs from October through the end of June. If an Obama nomination is blocked, it means that we'll have only eight justices not only through the end of this judicial term, but also for almost the entirety of the next judicial term as well -- even assuming the Senate moves fairly quickly in early 2017.

Politically, Scalia's death is already sending shockwaves across the landscape. It's rare enough that a president gets to appoint a Supreme Court justice. So far, Obama has appointed two Supreme Court justices. George W. Bush, Bill Clinton, and George H.W. Bush all got two picks as well. Jimmy Carter, however, didn't get any -- because none of them retired or died in office during his term. What's even rarer than a president getting a nomination is for a president to get the chance to make an appointment which fundamentally changes the balance of power on the court. Obama, to date, has merely replaced two liberals. For quite some time now, the court has stayed on a knife-edge balance between conservatives and liberals. There were some "swing vote" justices who couldn't be counted on by either side, but the court throughout Obama's term has held a 4-1-4 balance -- four solid liberals, four solid conservatives, and one swing vote (Kennedy). The reason Republicans are so adamant that Obama won't get a Scalia replacement seated is, obviously, that by doing so he could shift the balance to 5-1-3. This would virtually guarantee a liberal 5-4 (or even 6-3) victory in any politically-contentious case. Two years ago, I idly speculated about how the next president could have the opportunity to shift this balance, which was based solely on the advanced age of a number of the justices. Now that Scalia has died while in office, this theoretical fight has become real.

Speculation about Obama's possible pick is already running rampant. This is entirely normal -- it's one of those inside-the-Beltway parlor games which pundits love to play. So far, such speculation seems to indicate three possibilities (with some overlap). Obama could nominate a flaming liberal, since he knows the Senate's never going to confirm anyone he chooses. Call it a sacrificial flaming-liberal lamb, perhaps (if mixed metaphors don't faze you, that is). Or Obama could nominate someone already overwhelmingly (and recently) confirmed by the Senate for another judicial post. Taking this route would show the blatant hypocrisy of Senate Republicans rejecting someone they previously voted to confirm (to a lower appointment). Thirdly, Obama could appoint a member of a minority to the highest court, forcing Republicans to vote against an African-American, an Asian-American, a woman, or whatever demographic mix the candidate may have. Obama could attempt putting a "first X on the court," no matter what "X" actually is -- and, by doing so, dare Republicans to vote against such a historic appointment during an election year. This could fire up the Democratic base in response. Obama may even make a geographically-astute pick by nominating someone from a key swing state.

Of course, none of these picks are going anywhere in the Senate. Obama could reanimate the corpse of Ronald Reagan and nominate him -- and the Senate would likely still vote him down, just on the principle of never letting Obama have a win. There's only one case I can think of where the Senate might be motivated to act, but I'm getting ahead of myself. Whomever Obama decides upon is, in all likelihood, not going to be confirmed. However, this tactic may backfire spectacularly, and guarantee that Democrats win back control of the chamber in November's elections. There are two reasons for this.

The first is geographical. Republicans are defending many Senate seats this election cycle in states that are traditionally Democratic. So many, in fact, that Senate control could hinge on these races alone. The imbalance exists because these senators were all swept into office in the 2010 election, where (as Obama himself put it) Democrats got "shellacked." That was then, but this is now -- and some of those states who voted for Obama but elected Republican senators have come to regret their choice. This year was already a tough year for Republicans because of this dynamic, but with the Supreme Court balance thrown into the mix it has become even tougher. So-called "moderate" Republicans representing blue states are going to look a whole lot less moderate by their knee-jerk obstructionism against any Obama nominee. And you can bet their Democratic challengers will be making lots of political hay about it out on the campaign trail.

Which brings me to the second reason Democrats might have enough of an edge to wrest control of the Senate back -- voter excitement. Democratic voters are not normally as aware of the Supreme Court being a factor in their presidential vote. Republicans are much more cognizant of this, due to them complaining so loudly for so many years about "judicial activism" (defined as: judges ruling in ways they disagree with). Righties have been whipped up about the judiciary for decades, in fact, so while they will also be aware of the prospect of the new president getting an immediate court pick, it shouldn't boost voter turnout as much among Republicans as among Democrats. To put this another way, many Republican voters are always aware of this, whereas Democrats don't usually think as much about it. Increased enthusiasm about a court pick therefore could boost Democratic turnout in a more significant way than it should among Republicans.

If, as expected, Obama makes a pick and the Senate refuses to confirm him or her, then the next president will have an open nomination to make on their first day in office. This is incredibly rare in American history, and will figure heavily in the presidential race. Which brings me to the most eyebrow-raising political suggestion I've yet heard. What, after all, could motivate Senate Republicans to approve an Obama appointment before the election? One thing, and one thing only: the fear that by denying such a nomination they will wind up with someone even worse (as they see it) being elevated to the Supreme Court. Hillary Clinton and Bernie Sanders have a few options as to how to play this on the campaign trail. They normally wouldn't be expected to reveal the name of their Supreme Court pick, should they win in November. But there's one very special case that could cause Senate Republicans to absolutely quake in their boots. Hillary and Bernie could even issue a joint statement, because it would equally benefit either one of them as the Democratic nominee. Clinton and Sanders could both state plainly that, should the Senate refuse to approve Obama's nominee in a timely manner, they will -- on their first day in office -- nominate Barack Hussein Obama to the Supreme Court, to take Scalia's place.

That's the only thing I could see, at this point, which could motivate Senate Republicans to bite the bullet and approve an Obama nomination. Especially if it starts looking like Democrats are going to win big in November. Or, perhaps, after Democrats win big in November. If Obama names someone fairly moderate to the court (someone Republicans have previously voted to confirm, in other words), Republicans might decide that confirming him or her would be better than giving President Bernie Sanders or President Hillary Clinton the chance to put Obama himself on the Supreme Court. This might only happen if Democrats win big in their Senate races, during the lame-duck period after the election but before the new Senate is sworn in. This really seems like the only chance -- slim though it might be -- that Obama could actually get his nominee confirmed this year.

 

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