On February 24, I wrote an essay for Gawker arguing that confirming President Obama’s Supreme Court nominee is both constitutionally right and strategically wise for Senate Republicans. It is reprinted below.
With headlines dominated by accounts of primaries and caucuses and badly subtitled shouting matches on national television, it is easy to forget that one Barack H. Obama (remember him?) is still President of the United States, and he has a full 330 days remaining in his term.
Presumably, he remains empowered during those 330 days to fulfill all of his presidential duties, up to and including making viral video magic with fabulous 106-year-old ladies. Yet since the recent death of Supreme Court Justice Antonin Scalia, Senate Republicans have apparently decided that when it comes to the president’s responsibility to fill Supreme Court vacancies, it is appropriate to round the remaining length of the term down to the nearest zero. Only about an hour (!!) after reports of Justice Scalia’s death were confirmed, Senate Majority Leader Mitch McConnell issued this head-scratcher of a statement:
The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.
In reply to the obvious retort that, don’t worry, Senator, the American people have a voice, and that voice was embodied in their decision in 2012 to re-elect by a margin of five million votes the person who appoints Supreme Court justices, Senator McConnell and company proudly point to things like the so-called “Schumer Standard.” This concept takes its name from a 2007 speech by New York Senator Charles Schumer in which he argued that when it comes to Court nominees, the Senate, controlled at that time by Democrats, should reverse what he called the “presumption of confirmation.” From Politico:
New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”
“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”
Republicans are right that Article II, Section 2 of the Constitution imposes absolutely no obligation on the Senate to confirm a given nominee to the Court. But what Senator McConnell ignores in triumphantly crowing about this ten-year-old declaration is that it was effectively a thought experiment: There were no vacancies on the Court when Senator Schumer made this proclamation, and there are no nominees to which the Senate ever applied this “standard.” A hypothetical, inconsequential talking point does not justify Senator McConnell’s preemptive, flat-out refusal to consider a real live nominee to a real live Court vacancy.
Senator McConnell goes on to make the breathtaking assertion that the will of the people should be divined not by their choice of president, but instead by their most recent choice of legislators. All emphasis mine:
We also know that Americans issued a stinging rebuke to this president and his policies in our latest national election, delivering a landslide for the opposition party as they handed control of the Senate to Republicans in 2014.
Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court. It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.
This is a particularly silly logical leap to take for someone who just finished citing the portion of the Constitution that grants to the president the power to nominate justices to the Supreme Court. It’s difficult to imagine Justice Scalia, he of textualist and originalist fame, giving much credence to this argument.
Set aside, though, the question of whether refusing to consider President Obama’s candidate is right in any normative sense, and consider that it might be a good strategic decision for Senate Republican leadership to reverse course, hold a hearing, and even confirm President Obama’s nominee. Doing so could boost the Republican Party’s chances at winning the presidency, holding on to the legislature, and controlling the long-term trajectory of the Supreme Court.
Take President Obama’s position first. He wants to replace Justice Scalia, but he also knows that the looming election is going to make it more difficult than ever to get his choice approved by the Republican-controlled Senate. As a result, he will look to make it as difficult as possible for the GOP to both reject his nominee and also come out looking like a fair, impartial, and reasonable bunch. You could see the outline of this strategy in the White House’s statement issued after Justice Scalia’s death in which President Obama, essentially staring down Senate Republicans, pointedly pledged to fulfill his “constitutional responsibility” to name a successor to Justice Scalia.
I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our Founders envisioned.
By framing the issue in the context of Justice Scalia’s lifelong dedication to the Constitution’s plain meaning, President Obama threw down a clear challenge to intransigent Senate Republicans. But while he would probably love to fill Justice Scalia’s seat with a staunchly liberal replacement, he also knows that if he taps a far-left ideologue, no observer would view the Senate’s subsequent rejection of that pick as disingenuous. President Obama wants to make Republicans look recalcitrant, petulant, and childish. Throwing to the Judiciary Committee a nominee with whom its majority obviously and fundamentally disagrees would not accomplish this goal.
Thus, the president will probably nominate a moderate, reasonable candidate whose qualifications are beyond reproach and at whom few stones can be cast. Doing so will place tremendous pressure on the Senate and ensure that President Obama either replaces Justice Scalia or, failing that, makes the Republican Party look very, very silly.
In other words, the political landscape actually places significant limits on the scope of the president’s realistic options. On Tuesday, President Obama foreshadowed this approach in a guest post on SCOTUSblog, noting his “duty” to fill Court vacancies and also tipping his hand on what he’ll look for in Justice Scalia’s successor. All emphasis mine:
First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.
Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.
Sure, every president says something like this, pledging to tap a fair, reserved jurist before putting a nominee through the wringer of Senate confirmation hearings. But President Obama’s choice to preempt the dreaded “judicial activist” label so early and often in the nomination process strongly suggests that he is willing to sacrifice ideological like-mindedness for unimpeachable qualifications. Justice Scalia will not be replaced by a liberal firebrand, at least if Barack Obama gets to appoint his successor.
Meanwhile, the GOP is not enjoying a great election cycle. Its only two candidates to have carried states so far would get absolutely buried in a general election—not because either Democratic candidate is particularly great, to be honest, but because they have left at least a little room to run to the middle and court moderate voters. Republican contenders cannot say the same. Gleefully promising to carpet-bomb civilians and pledging your allegiance to the always-charming Jeff Sessions might play on Fox Business Network, but it won’t on a national stage. With a week until Super Tuesday, Republicans are still searching for a moderate candidate with a real shot at winning the nomination. (Cue John Kasich and the Ghost of Jeb Bush nodding sadly).
However, Justice Scalia’s passing could allow the GOP a rare and unexpected opportunity to court elusive moderate voters. Sure, Senate Republicans would rather have a future, hypothetical Republican president nominate Justice Scalia’s successor. But they also know how bad their refusal to consider President Obama’s pick will appear to swing voters, and how difficult it will be for the GOP nominee to defend this move during debates all summer. Imagine Hillary asking Marco Rubio, a sitting senator, why he finds it appropriate to take his constitutional duties seriously only when his party deems it politically expedient, and Rubio just melting into a sweaty puddle on national television.
But by considering and perhaps even confirming President Obama’s nominee, Republicans concede the battle but earn a chance to win the war. Replacing Justice Scalia with President Obama’s safe, moderate pick is unlikely to hurt the conservative movement. More importantly, considering the nominee in good faith would allow Republicans to portray themselves as reasonable, fair, and principled. Opportunities to endear the party to swing voters have been rare in this primary season concerned more with things like wall-building and pig’s-blood-dipping. Here, the GOP can deprive the Democrats of general election attack ad fodder and allow the Republican nominee to show that his party places the rule of law above political maneuvering. Confirming Justice Scalia’s successor may help the Republican Party win what is otherwise a very grim-looking election.
And if they do, look out. The party would hold the White House and control both chambers of the legislature, setting the stage for an era of potentially dramatic policymaking success. This would not come at the expense of the opportunity to swing the Court’s ideological balance. Justices Ginsburg and Breyer, two of the Court’s reliability liberal voices, are 82 and 77, respectively, while the notoriously hard-to-predict Justice Kennedy will turn 80 in July. The next president is likely to nominate two or even three new justices to the Court, particularly if he or she manages to win reelection in 2020. With more than just the one empty seat at stake, the long game is the smart play.
Of course, confirming President Obama’s nominee may not prove to be enough to stop Hillary or Bernie from winning in November. (Disclosure: I, um, hope this is the case). But for as long as it remains unable to appeal to moderate voters, the Republican Party will continue to struggle to gain traction in a general election. And a President Clinton or President Sanders, armed with a fresh electoral mandate, would likely nominate a successor to Justice Scalia who is much scarier for the conservative movement than President Obama’s eventual pick.
Republicans have a fighting chance to use Justice Scalia’s passing to tip the balance of power in their favor for years to come. But it’s going to require some unconventional thinking from Senate Judiciary Committee hearing rooms this summer. Those still vying for the Republican Party’s nod should hope that Senator McConnell and friends are sharp enough to figure it out.
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