Sunday, February 14, 2016

The Scalia Trap

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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