In the aftermath of Justice Antonin Scalia’s passing, it can feel a bit crass discussing the political fallout; after all, he was a husband, father, and grand-father whose family is in mourning. However given the current balance of the court and titanic influence he leaves on legal thinking, the fact is we are entering one of most significant political battles in years, and while Senate Republicans have already made a tactical blunder, they must hold firm.
Whether you agree with his jurisprudence or not, it is indisputable that Scalia leaves behind a tremendous legal legacy. In 30 years on the court, he re-energized the textualist movement with harsh, impeccably worded dissents, groundbreaking majority opinions (ie Heller), and the occasional surprise (ie Emp Div HR OR v. Smith). Scalia is the father of much conservative legal thought, which makes the fight over his successor all the fiercer. On top of this, the Court now has 4 liberals and 4 conservatives (3 if you count Kennedy as a centrist). This means that the cases in which the Conservative wing would have prevailed 5-4 are now deadlocked 4-4. A liberal Obama Justice could feasibly swing the court to the left for years, guaranteeing the stability of Roe while endangering recent precedent on campaign finance, gun rights, and more.
Given the stakes, Senate Republicans must be very careful in how they proceed. Scalia’s death comes at an odd time. Had a vacancy arisen 5 months ago, the “lame duck” argument would be very weak, and the Senate would have been compelled to confirm a qualified nominee (elections do have consequences). If a vacancy had arisen 6 months from now, the decision not to act on a nomine would be on exceedingly firm ground as Obama would be a truly lame duck with an election right around the corner. Now, the timing of 9 months prior to the election gives credence to both arguments on whether to act or not (Kennedy in 1988 provides precedent to act while Fortas in 1968 is precedent not to act). Ultimately, this is really a new situation, unless you deem how congresses acted 50, 80, or 150 years ago to be very relevant to the present day.
With the court so evenly split, the GOP should likely delay, but the politics are bad. Republicans have only worsened the situation as well. On Saturday, Majority Leader Mitch McConnell said, “this vacancy should not be filled until we have a new president.” The Senate will not move on an Obama nominee, and the GOP almost certainly has the votes to sustain any filibuster. With 54 seats, they would have to suffer 14 defections, which is almost unthinkable, especially with vulnerable Senators up for re-election like Pat Toomey and Kelly Ayotte currently backing McConnell’s position. While the GOP should delay this until the next President, the way they are going about it is a mistake.
Republicans should have waited for Obama to formally nominate someone and then found specific reasons to oppose that candidate. Now, any specific criticisms can more easily be written off as an after the fact rationale from a bunch of obstructionists. Announcing opposition now is akin to shooting first, asking questions later. It is almost certain that the Obama nominee (whether it be Loretta Lynch, Sri Srinivasan, or someone else) will have enough flaws to justify delaying confirmation until the next President, and under the miniscule chance Obama makes a consensus choice, that nominee would deserve a fair hearing. In an effort to appease the Ted Cruz kamikaze wing of the party, McConnell has made it easier for democrats to label republicans as obstructionists and sway independents in the 2016 election.
In all likelihood, this political fight will have a limited impact on the 2016 election, but if anything, it hurts republicans. That said it can be worth losing political points when waging an important fight. The fact is few voters ever cite the nomination of Supreme Court justices as their most important issue (even though this power is one of the President’s greatest), and that is unlikely to change. It is hard to imagine more than 10% of Americans seeing this as their top issue, and such voters are likely high propensity, partisan ones. This is to say that they likely vote anyway and are not persuadable. On the margin, some democrat and some republican voters may be more energized, but they would have voted anyway. Scalia’s death may energize some voters, but it won’t swing the outcome in any meaningful way. However, this fight will make it easier for democrats to make the obstructionist argument (particularly if Ted Cruz become the nominee), which on the margins could swing some independents to the democrats. The Supreme Court does not work as a stand-alone issue to sway independents, but it can be used as part of a broader narrative against republicans. In particular, if Ayotte, Toomey, and Johnson get weak-kneed, that is a sign the political cost of this fight is growing.
Obama has every right to nominate someone, and the GOP should hold hearings for that nominee. However, there should not be hesitation to oppose him or her and keep that person off the bench given the high stakes of this vote in a divided court. The GOP should’ve waited for the nomination announcement to come out in opposition to avoid the “blind obstructionist” label, but that is water under the bridge at this point. With the Supreme Court in the balance, this is a fight worth having, even if there is a slight political price to be paid.
Justice Scalia’s guiding philosophy was driven by the goal of making the text of the law pre-eminent so that who the presiding Jude is does not matter. It is a sad twist of irony then how much of a fight there will be over who succeeds him. Equally, one is left to question the fragility of our republic that the death of one Judge can have such earth-shattering (partisans might say cataclysmic or bountiful) consequences.
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