With the death of Supreme Court Justice Antonin Scalia, the seat will likely remain vacant for at least a year. President Barack Obama will nominate a replacement but Republicans in the Senate, including Majority Leader Mitch McConnell, have pledged to block anyone Obama appoints, regardless of qualifications. As the New York Times noted, “Mr. McConnell’s threat to block a confirmation could complicate the re-election chances of Republican senators in swing states.”
The fact that this vacancy occurred during Obama’s lame duck year is irrelevant to his constitutional duty to nominate a replacement, of course. Obama is still the duly elected president of the United States and will be for nearly a year! He should fulfill his duty and nominate someone to fill Scalia’s seat. It’s also the case, of course, that the Senate can use its constitutional prerogative to block whoever Obama nominates. What makes this a little bit ugly is that McConnell and co. aren’t using their “advice and consent” role in the way it’s been traditionally deployed in this country. They’re saying that Obama can’t nominate anyone, at all.
Again, that’s their prerogative. Republicans are trotting out the laughable argument that this is about 80 years of precedent. That’s absurd. Supreme Court vacancies in election years are rare, so it hasn’t happened very often, but that’s the luck of timing. In the country’s history, seventeen Supreme Court justices have been confirmed by the Senate during a presidential election year. Anthony Kennedy was appointed by Ronald Reagan and confirmed by a Democratic Senate in 1988, an election year (Kennedy was nominated in late 1987, so Republicans like Ted Cruz claim this didn’t count for their made-up precedent. In 1968, President Lyndon Johnson withdrew the nomination of Abe Fortas as Supreme Court Justice; Fortas had a variety of factors that might have kept him from getting confirmed but Sen. Strom Thurmond, the South Carolina senator who had by then switched to the GOP because of his white supremacist views and wanted a justice nominated by a Republican, suggested an informal rule that no lifetime judicial appointments be made in the last six months of a presidency. The so-called Thurmond Rule has sometimes been invoked and sometimes been ignored, depending on what is convenient for lawmakers at any given time. Not even Thurmond suggested that judicial nominations should halt for the entire last year of a presidency
The notion that there’s some principle at stake here is risible. This is just a pure power grab by Republicans (as Donald Trump refreshingly admitted on the GOP debate stage Saturday night). And given the stakes, it’s not an unreasonable ploy. If the situations were reversed, of course, Democrats would likely pull the same maneuver. Under the circumstances, the high-minded accusations flying from both sides are tedious. Everyone’s using the tools at their disposal to influence a lifetime appointment that will shape American jurisprudence for decades. Given the increasing partisan polarization in Congress, this was probably inevitable. It’s baked into the constitutional cake.
That said, it could be a political disaster for Republicans to be so forthright about their plan for total obstruction. This is, in fact, a sharp disruption of the norms around Supreme Court appointments. Typically, opposition parties in control of the Senate have confirmed nominations of Supreme Court justices within reason (there have been a few exceptions, but they were battles on the merits of specific nominations, and alternatives were eventually confirmed). The idea of a blanket veto, regardless of Obama’s choice, is genuinely new and seems like a long way from “advice and consent.” It’s a commitment to gridlock and to leaving the seat unfilled. Donald Trump’s suggestion of “delay, delay, delay” might play well with the base, but it’s not a good look in blue or purple states with tight senate races. The ads write themselves.
Expect Obama, Hillary Clinton, and Democratic senate candidates across the country to slam the GOP obstructionist tactics. The New York Times reported that after Clinton saw the statements from McConnell and others, she revised her statement on Scalia’s death to add a ringing condemnation of their shenanigans: “The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution. The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons.”
I’m sure Democrats would have made a version of this argument regardless, but Republicans are lending a hand to Democrats by declaring their total-obstructionist plan upfront. This also helps Democratic Senate candidates in blue or purple states argue that Republicans are determined to nominate a conservative extremist to the Court.
Republicans could have avoided looking like they were enacting a nasty power play. They could have avoided the appearance that they are using their advantage in the Senate to declare that the president can’t appoint a justice to the Supreme Court at all so long as that president is a Democrat. All they had to do was claim that whoever Obama appointed was unacceptable — too liberal, etc. They could have run the “delay, delay, delay” idea without telegraphing what they were doing. This amounts to the same thing, but the rhetoric here matters. Republicans could claim to voters that they were doing their constitutional duty and found Obama’s appointments wanting, as opposed to the novel argument that Obama’s appointments are a priori illegitimate. (As a matter of constitutional duty, meanwhile, I would say that holding contentious hearings is a more legitimate use of their power than simply refusing to consider any nominee.)
This seems like the obvious political play, and Republicans risk being punished by voters for their naked political power grab. But GOP senators and candidates have to play to the base here. Most of them are in safe seats, more worried about primary challenges than tight races with Democrats — and the presidential candidates are duking it out to win over partisan base voters in the primaries. Under the circumstances, the pressure is on to establish True Conservative bona fides by immediately pledging to block anyone Obama nominates, even if that’s a terrible message for any race where swing voters matter, from senate races in purple/blue states to the general election for president.
Ezra Klein at Vox documents the unforced error:
From one angle, Senate Republicans just made a massive mistake. They could have simply waited for President Obama to nominate a replacement for Justice Scalia, drawn out the confirmation process, and then rejected the nominee on ideological grounds months from now.
But Senate Republicans didn’t do that. Instead, Senate Majority Leader Mitch McConnell immediately announced he wouldn’t consider any nominee from Obama no matter how qualified, how conservative, or how beloved. What could’ve been a debate over the noxious liberalism of Obama’s choice has now become a debate over the reflexive obstructionism of Senate Republicans.
Klein also points out that in the end, this could be a tactical mistake that leads to a more liberal justice ending up on the Court:
What’s worse is that McConnell’s decision leaves the GOP with few options if their situation deteriorates through the fall. It’s entirely possible that, six months from now, Donald Trump will be the Republican nominee and Republicans will be in serious danger of losing the Senate. If that happens, Republicans will wish they had cleared the compromise candidate they could have forced on Obama now, rather than watching President Clinton and Majority Leader Chuck Schumer nominate a liberal they can’t stand to tip the balance of the Court. McConnell could have left himself that option, but he didn’t.
Chris Cillizza at the Washington Post makes the same point:
Saying publicly — and on the same day that Scalia died — that replacing the justice was a non-starter, Senate Republicans sent a very clear message to the American voters: We aren’t even going to make a show of playing ball on this one. …
Yes, the Republican base likely agrees with Cruz on. But, it will be a much harder sell to the average center — or even center right — voter. The “advise and consent”role for the Republican-controlled Senate mean they can and should totally ignore a presidential pick to serve on the country’s highest court? That’s not going to ring true for most people. …
With McConnell’s statement on Saturday night, the chance for Republicans to “win” on the Court nomination becomes remote. Refusing to even take part in the process — even though that process could have easily yielded the GOP’s desired result — hands Obama and Senate Democrats a political cudgel to bash the GOP.
It’s an unforced error by Senate Republicans that will be difficult to mop up. And one that could cost them at the ballot box in November.