The death of the polarizing figure of Justice Antonin Scalia introduces a new wrinkle into an already unpredictable race for president. At first, it was argued that this year’s contest would be all about income inequality. Then, in quick succession, it was claimed it would center on terrorism, immigration and a half dozen other issues. Bubbling under the surface all along has been a fury against business as usual on both the left and right, as evidenced by the dismal showing of establishment candidates and the surprise popularity of bomb-throwing outsiders.
Enter Scalia. Or rather, exit Scalia. His death gives President Obama a chance to appoint a third justice to the high court, and to replace its most conservative member with someone more left of center, thereby tilting the balance of power from the usual 5-4 or 4-5 split to 5-4 or 6-3 decisions. Not for the first time, Obama appears to be the luckiest politician presently in office, a trait worth any number of other skills.
Within seconds of the news breaking, Senate Republicans vowed that any Obama nominee would be ignored for the next year, so that Scalia’s successor could be appointed by anyone but Obama. Republican candidates vied to outdo each other in praising Scalia, demanding what McConnell And Grassley had already promised, and vowing that if elected they would appoint someone to the right of Draco.
First, this is all unprecedented. If the election were over and a new president about to be sworn in, postponing selection and confirmation could be justified. But there are nine months until the election and almost a year until the next inaugural. An appointee delayed until the next president takes power would not realistically start serving until the term running from October 2017 to June 2018.
That’s idiotic. An eight man court is likely to split 4-4 on innumerable cases, rendering the Supreme Court powerless and throwing justice back to the appellate bench. Historically, the average time between nomination and confirmation has been about 70 days, so a new justice could be on the job in a little over two months, long before the next term starts in October and months before the president’s term ends.
Obviously the plan to deny consideration of any nominee is just the culmination of eight years of obstructing all things Obama by the Republican Congress. This is hardly speculation. On the day of his inauguration in 2008, Mitch McConnell and friends devised a plan to render Obama’s presidency impotent because, as the Senator admitted, his number one goal was not to pass legislation useful to the country and his constituents but to deny Obama re-election. Thus, Congress’s refusal to perform its duty to advise and consent to a presidential Supreme Court appointment is just more business as usual.
There is an irony to this. Scalia’s jurisprudence was all about figuring out what bewigged 18th Century men would have done, and then ruling that way. It looks a lot like the Constitution says presidents get to name Supreme Court justices and Congress must accept them or refuse to do so. Ignoring them for months and years so the Court is a justice short and unable to do its business would probably strike Scalia, the Ur-traditionalist, as uncanonical behavior. Indeed, it seems unconstitutional to refuse to perform one’s constitutionally-mandated role.
Will this blatant attempt to undermine the workings of the Constitution backfire? It could. Congress is already much more hated and reviled that the president. And a third of its Senators are up for reelection, quite a few in states more friendly to Democrats. Majority Leader McConnell’s ploy could help him to become Minority Leader.
Also, suppose either Hillary Clinton or Bernie Sanders wins the presidency but the Senate remains in Republican hands. Will the Senate then refuse to give any hearing to a nominee to replace Scalia for another four or eight years? Or are Southern Republicans only opposed to nominees that are offered by Barack Obama? This is far from hypothetical. Justice Kennedy is now 79, the same age as Scalia, Ginsburg is 82 and Breyer 77. If Congress refuses to seat any nominee sent up by a Democratic president, the country could be down to a five member Supreme Court by 2020.
More to the point, the composition of the Court may really become a voting issue this year, given the plan by the Republican Senate to exercise an extra-constitutional pocket veto of any Obama nominee. Cruz, Rubio, Trump and the rest of the Republican candidates are promising to preserve the Scalia legacy if they are elected, to create, in effect, a Scalia seat that can only be filled by someone with his judicial philosophy. This will play well with Republican primary voters, but will the larger electorate really find the prospect attractive?
Scalia’s vision was of an America where suspects were no longer given Miranda rights, women would have no right to an abortion, gays to marriage rights or minorities to affirmative action. He often favored police power to that of defendants, state power to that of the federal government, approved of capital punishment and refused to hear appeals even in cases where new evidence exonerated the person on death row. He found nothing to object to in torture.
Scalia was sufficiently out of the mainstream that almost all of his famous opinions were dissents from a more temperate majority. He couldn’t persuade four of his colleagues he was right very often, let alone the rest of the country. So will minority voters, women, gays, federalists, civil libertarians, millennials and others be anxious to turn back the clock? Or will they be more likely to embrace a progressive, inclusive view of America? Will they side with Cruz and McConnell in blocking Obama or will they think the President ought to be permitted to do his constitutional duty in nominating a Supreme Court justice, and feel the Senate should do its and give the nominee an up or down vote?
In a year when the electorate is already mad as hell and fed up with business as usual, the Republicans’ willingness to play partisan games with the Supreme Court may help tilt the election against them. If that happens, in a final irony, Scalia dead might do more to change the course of America than he ever did alive. In fact, Hillary has already said if the Republicans succeed in delaying the filling of the Scalia seat until she assumes the presidency, she’d consider appointing someone who was elected to the prestigious post of President of the Harvard Law Review, taught Constitutional Law, served as both a Senator and as the nation’s Commander-in-Chief, none other than Barack Hussein Obama.
Oh snap. Could anyone Obama selected be worse than that?