So much of the discussion about filling Antonin Scalia’s spot on the Supreme Court has centered around the electoral consequences of different strategic choices, especially on the Republican side. Should Republicans obstruct at all costs in order to satisfy a base that can’t get enough Obama hatred, or should they use their available leverage to pressure the president (who will be president until January 19, 2017, just to be clear) to appoint a centrist who, for conservative purposes, would be preferable to potential Clinton or Sanders nominees? What are the political and legal ramifications of accepting 4-4 decisions, which would leave a number of significant Court of Appeals rulings standing at a time when a majority of circuits has majorities appointed by Democratic presidents? And how would long-term obstruction affect the electoral chances of blue-state Republican senators up for re-election?
But I confess to harboring doubts about Senate Republicans’ strategic acumen when a sober calculation of the party’s best interests so often collides with the white-hot rage of its base. Consider these two examples:
- The Republican National Committee’s Growth and Opportunity Project, in its 2013 autopsy of the recently concluded presidential election, argued that unless the party took up the cause of comprehensive immigration reform, and more generally adopted a more welcoming tone toward Latinos, the “Party’s appeal will continue to shrink to its core constituencies only.” “If Hispanic Americans perceive that a GOP nominee or candidate does not want them in the United States (i.e. self-deportation), they will not pay attention to our next sentence.” Yet the leading Republican candidates have rejected Mitt Romney’s “self-deportation” policy as too lenient.
- When Attorney General Eric Holder announced his resignation last September, he stated that his departure would take effect as soon as his successor was confirmed. You might think that conservatives, who led the successful effort to make Holder the first sitting Cabinet member to be held in contempt by Congress, would have fallen over themselves to replace Holder with just about anybody. Instead, Republicans dragged out Loretta Lynch’s confirmation process for five months, thereby extending Holder’s tenure.
For now, it’s unclear whether the American public will be treated to Potemkin confirmation proceedings or none at all. But let’s not assume that Obama’s opponents are engaged in grand strategic calculations, when it’s more likely that their actions are simply about trying to avoid attracting the ire of the conservative id.
In a different world, when a leading figure in American jurisprudence dies, our initial response would be to take stock of his legacy, both positive and negative, and to remember that he had many friends and family members who will miss him dearly. It would not entail parsing the political ramifications of that person’s passing. But that world does not exist today, and it’s unclear whether that world ever existed outside of David Broder’s imagination. Politics cannot be put on hold, given the Supreme Court’s centrality to American politics, highlighted further by the upcoming presidential election that might decide the balance of power on the Court for decades to come. So let us dispense with the jiggery-pokery and consider possible scenarios for Justice Antonin Scalia’s replacement.
In the most likely scenario, President Obama will nominate a moderately left-of-center person (this guy is getting all kinds of buzz, and deservedly so) and dare the Senate to block the nominee for almost a year. The initial reaction of Senate Republicans indicates their willingness–their glee, really–to accept that dare. A party that breaks with decades of tradition by refusing even to hold courtesy hearings on Obama’s budget will not be deterred by the argument that a year’s worth of dilatory tactics is somehow outside the pale. And the ghosts of Abe Fortas and Lyndon Johnson can testify that when it comes to being the subject of filibustering, the Supreme Court is not out of bounds.
Maybe the calculus will change if the Democratic nominee for president conclusively pulls ahead in the general election race and Democrats show signs of regaining control of the Senate. In that scenario, an Obama nominee might look preferable to whoever might be chosen under unified Democratic control. But if the Republican nominee is even or ahead after the conventions, the GOP will feel that much more secure in waiting until 2017. Since Obama, according to early reports, has already indicated that will be nominating someone, the shadow of the Supreme Court will loom over the general election, and increasingly over the primary election (contrary to what I wrote not even 48 hours ago).
But should Obama decide, in the face of continuing Republican intransigence, to change his strategy from seeking a mutually acceptable nominee to trolling Senate Republicans, there’s really one obvious choice: David Souter. Not only do you get the moderate liberal, but you can also tout him as a Republican who comes with the Bush family seal of approval! And at 76, Souter would be unlikely to hold the seat for a very long time, so a new president could still get a shot to fill the seat. Conservative activists whose nomination strategy can be characterized as “No More Souters” would become apoplectic, but inducing apoplexy is the very point of trolling. I’m not really expecting Obama to undertake this maneuver, but if he can’t break through the anticipated resistance with a more conventional nominee, I’d love to see him try it.
The Supreme Court has memorably been labeled “the least dangerous branch” of the national government, yet if the 2016 elections result in more divided government, its relative power will increase in the face of continued gridlock. Moreover, with four justices over 75, the Supreme Court will see its direction shaped indelibly by the president who has the opportunity to fill the vacancies that from an actuarial standpoint are likely to occur. Yet the Court has received little attention from either party’s presidential candidates, and this relegation has flummoxed various astute political observers. After describing the multifarious and highly consequential issues the Court will face in coming years, and how new appointments will determine the direction the Court will take on these and many other issues, Ed Kilgore at New York‘s Daily Intelligencer raises the possibility that this year might be different if
either Sanders (who, again, views campaign-finance reform as a condition precedent for much of his agenda) or Ted Cruz (the self-proclaimed “constitutional conservative”) wins a nomination. It’s also possible a Hillary Clinton presidential candidacy would make defense of Roe v. Wade or reestablishment of voting rights a public priority. More likely, SCOTUS will continue to be an underground issue of immense importance to constituency and interest groups but only discussed by the candidates indirectly or via dog whistles to the initiated.
The mystery of the Supreme Court’s low visibility certainly has something to do with the plethora of competing high-profile issues (e.g., security, the economy), as well as the presence of high-wattage figures who prove attractive to a press inclined to explain political trends in personalized rather than institutionalized terms. It might also have something to do, as Edwin Chemerinsky puts it, with a public perception of the law that insufficiently recognizes how much discretion the justices possess, and thus fails to ascribe sufficient significance to the composition of the Court.
Kilgore’s reference to constituency and interest groups captures so much of why candidates have not spoken more directly of the Supreme Court. Primary electorates tend to be more ideologically extreme than the electorate at large, and they tend to be more engaged in politics. If general election voters are akin to casual supporters of a football team, primary voters are the fans who drive a hundred miles to watch their team in training camp, and show up on snowy December days when their team is 2-12. But if the diehards are the core audience for a primary campaign message, and they are more likely than the general electorate to recognize the Court’s significance and to link it to presidential election outcomes, why not talk more about the Court now, rather than downplay it?
The best answer, as I see it, is that there is little to be gained in a contested primary campaign from raising the issue. Hillary Clinton and Bernie Sanders are likely to nominate similar people to the federal bench; even if Sanders would prefer someone further left than would Clinton, he would find himself constrained by the Senate, irrespective of which party controls the chamber. Similarly, while the Republican candidates might disagree on the degree to which Chief Justice Roberts’s apostasy has made him this generation’s David Souter, they agree that Souter 2.0 is worth avoiding at all costs. And activists on each side know that the differences between their respective party’s candidates on nominees pale in comparison to the differences between parties. So once the candidates have signaled their bases about their general trustworthiness concerning the Court, there is not much upside to going into greater detail, and some potential risk of misspeaking or otherwise coming into conflict with judiciary-focused activists.
As someone who studies and teaches about judicial politics for a living, I would be delighted to see this campaign feature a more vigorous debate about the Supreme Court. But unless debate moderators or primary voters can successfully pressure the candidates to address the subject, that debate won’t be occurring before the general election campaign.
Update (2/13/16): It seems I’ve spoken too soon.