The political reaction to the death of Supreme Court Justice Antonin Scalia is the clearest evidence I’ve seen lately of the sclerotic thinking that passes for wisdom and strategy in American politics. Not saying I’m surprised, mind you, just saying.
Don’t get me wrong: every vacancy on the Supreme Court of the the United States, ever, has been the occasion for political plotting and pontificating…that’s the nature of the beast. Maybe there was more lip service paid in the past to observing “a decent interval” before going public, but we know that one reason the successful professional political players are successful is that they don’t let an opportunity to gain advantage go to waste. In this case, Scalia’s body hadn’t made it home to Virginia before Senate Majority Leader Mitch McConnell announced his intention to block anyone nominated by President Obama in the hope that a Republican wins the presidency this November.
Why? Because “The American people should have a voice in the selection of the next Supreme Court justice”? Excuse me, Mr. Majority Leader and avowed Obstructionist-of-Obama-in-Chief, but that’s not the way it’s done and we all know it.
There isn’t—or shouldn’t be—any disagreement on the facts: the Constitution gives this president the responsibility to nominate a new justice in this case, not the next president; many of the same Republican senators now insisting that the process must be put on hold for the good of the nation had very different opinions when the question came up during the last few months of George W. Bush’s presidency. (Yes, plenty of Democrats have more than a passing acquaintance with hypocrisy as a political tool, too, starting with Chuck Schumer on this same topic eight years ago; I’m sure some of you have more examples.) Also true is that the Constitution gives responsibility to the Senate to approve or reject that nominee, with no timetable or deadline for doing so.
There’s no question that McConnell and the Republican majority have no legal requirement to approve President Obama’s nominee, or even to put the nomination to a vote. They may make the political calculation that stonewalling for a year is the better path: bet on winning the White House and holding the Senate so they can have their pick of ultraconservative judges, versus running the risk of losing both and allowing the Democrats to choose another Douglas or Brennan (if one can be found). I wish they would just say so, instead of going to the well for another round of the Obama Apocalypse that (inexplicably) plays so well with a certain portion of the electorate. Andrew Prokop at Vox.com wrote them a first draft of such a speech:
Justice Scalia was a strong, solid conservative. And whoever Barack Obama nominates to replace him is certain to be well to his left — and will likely be very, very, very far to his left.
This would upset a balance of power in the Court that has existed for decades. Instead of a five-vote majority that is generally conservative, a Scalia replacement appointed by President Obama would allow a new majority bloc of five solid liberals to form. On issues affecting free enterprise, the sanctity of human life, and federal power, sweeping new liberal rulings could reshape law and precedent across America.
I believe this would be a disaster for the country. Most members of my party believe this would be a disaster for the country. And most of my party’s voters believe it would be a disaster for the country.
So I’m going to do my best to stop it from happening.
…in suggesting that President Obama shouldn’t appoint any replacement for Scalia, and that he should just leave it to the next president, I am rhetorically going further than others have in the past.
But really I’ve just hit the fast-forward button. We would have ended up opposing whomever Obama nominated, because that person would, of course, have had liberal views. And my party’s senators would never have approved any other Obama Supreme Court nominee anyway, because they’re terrified of losing their seats in primaries.
So maybe my “no nominees in the final year” position hasn’t explicitly been taken by anyone before, but it hardly means the death of our constitutional democracy. The near-term upshot is that one Supreme Court seat stays vacant for a year. Some closely divided cases will effectively remain unresolved for a bit. Big deal.