There are times
when pure random fate accelerates the inevitable, bringing a cascade of
coincidence, unexpected choices and unanticipated consequences. We are at one of those moments.
I think it would
be fair to say that no one ever expected Justice Scalia to pass away. The GOP has been feverishly checking in on
Ruth Bader Ginsburg (doesn’t she look pale….) for a near eternity, but Scalia
seemed immortal-a vigorous, avid outdoorsman, his intellect displaying itself
in ever more delightfully abrasive ways with each passing year.
But, now he’s
gone, and the reality is that the political process must deal with it. Presidential appointment power to the Court,
with the Advice and Consent of the Senate, is set forth in Article 2 of the
Constitution. The President proposes,
the Senate deliberates and decides. When
they are of different parties, neither gets their ideal. As to Supreme Court
vacancies, historically they have been filled promptly, with nominees being
given quick hearings. There is a practical reason for this: The Federal Court
system can operate with fewer District Court and Court of Appeals judges while
politics gums up the works. Vacancies on the Supreme Court are another matter—given
the critical importance of many rulings on fundamental liberties, litigants should
not have to accept 4-4 decisions while politicians preen for the cameras.
Unfortunately, I
expect a lot of preening for the cameras.
Republicans consider Scalia’s seat “theirs” (they also consider Ginsburg
and Breyer’s seat theirs as well) and are unwilling to permit the nomination
process to go forward. Overwhelmingly,
the loudest voices in the party, and their media supporters, are demanding that
President Obama not nominate anyone.
Of course, the
President is going to nominate, as he should, and McConnell will resist, as he
has said. But the game really turns on
who Obama picks, as opposed to whether he picks, or even whether his choice
will be confirmed. The Left will want
him to nominate a true-blue liberal, and there are some issues that he really
cannot back down on—reproductive rights in particular. But if Obama nominates someone too liberal,
he risks losing the moral high ground that he currently holds. The public knows
that this is pure politics, but an overtly “Lefty” nomination would justify the
Republican’s resistance.
Mr. Obama
understands this. He actually has a tremendous
opportunity here—he can pick a highly qualified, universally respected person
of the center-left, or center. My own
preference would be for a true centrist, because what I think the Court really
needs is more Sandra Day O’Connors—Justices who would begin to repair the
breach caused by the perception of rank partisanship that many people ascribe
to any Supreme Court decision they don’t agree with. But Mr. Obama does not consult with me on a
regular basis, so I would imagine he will select someone a bit of the Left, but
not strongly so—and someone already either on the Federal Bench, and confirmed
with bipartisan support, or perhaps someone with time on the prosecutorial side
and the bench, to demonstrate solid law-and–order credentials.
The correct
selection will put the GOP in a terrible quandary—especially since virtually
everyone up for election must then declare their fealty to this position, and
defend it. Easy if you are from Texas or
Oklahoma—not so easy if you are from a swing state, or in a swing
district. There are 24 Republican
Senators up for re-election. Just a quick look at those from states Obama won
in 2008 and/or 2012 shows you the risk: Ayotte of New Hampshire, Burr of North
Carolina, Dan Coat’s seat in Indiana (he’s retiring), Ron Johnson of Wisconsin,
Mark Kirk of Illinois, Rob Portman of Ohio, Pat Toomey of Pennsylvania, and our
very own Marco Rubio, who is (officially) leaving his seat to seek a better
place. Add in the usually centrist Lisa
Murkowski of Alaska, plus Rand Paul’s seat in Kentucky, which may be in play,
and you can see the basis for real concern.
Just how do you explain to your constituents how someone highly
qualified, someone you may have already voted to confirm, has suddenly become unfit?
You can’t, of
course, except to those who want to believe fairy tales. That places on McConnell, the real
gatekeeper, a huge burden. McConnell has
some of the most acute political ears in the country, and his highest priority—perhaps
even higher than electing a Republican President, will be to preserve his
majority.
McConnell knows
that the truth is that few people seriously believe that a President should not
make appointments in his last year in office—even the conservative theorists
currently trying to put an intellectual gloss on it know the Founders would be
rolling in their graves. Yet, if
McConnell decides to go down this path, and obstruction succeeds, the genie is
out of the bottle, we will have permanently re-defined the appointment
process—and the powers of the Presidency.
I don’t think Mitch really wants that, and certainly not for a future
Republican President.
Still, he is the
most powerful Republican in the world right now—the one who’s decisions will be
the most consequential. He must choose a
path—a true path, past the rhetoric and the ritual denunciations of Obama and
anyone he nominates. Infinitely complicating
things for him will be having Cruz and Rubio right in the room (when they
bother to show)—both there solely to advance their own interests, regardless of
the potential impact. The right Obama
nominee makes for McConnell’s Sophie’s Choice—it’s either red meat, or do the
tactically (and institutionally) smart thing.
The issue, in
fact, potentially diminishes every Republican it touches. It yanks Republicans
harder right, of course, but it also swamps them in moral relativism at a time
when they claim to want to restore the rule of law. Do you think Cruz, Rubio, Kasich, Bush or
Trump would accept these type of limitations on their own power? Not a chance—but there is no good way to
answer that question (which will be asked over and over again in the general
election) and not sound like an utter hypocrite.
A Supreme Court
vacancy for an entire year? Wouldn’t you
love to wake Scalia for five minutes and get an Originalist’s point of view on
that.
Maybe he couldn’t
abide his seat being taken by someone less conservative. But I think his intellectual side would win out,
he would recognize the risks, and send a private note to the GOP:
“Trap!” Love, Nino.
Michael
Liss (Moderate Moderator)
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