Republicans need to ask themselves a couple of questions before they battle over Barack Obama’s eventual nominee to replace Justice Scalia on the Supreme Court. Is there any good reason to allow this president to change the ideological composition the Supreme Court radically? What is the political downside of denying him?
The GOP could start by making arguments about the Senate’s duty to preserve the Supreme Court’s integrity as a bulwark against the vagaries of democracy and executive abuse. And while that sounds like a fantastic case to me, I’m skeptical the average voter cares all that much about idealism in this year of grievance and anger. There are, however, a number of political reasons the GOP shouldn’t — and can’t — back down.
1. ‘Obstructionism’ Will Not Sink the GOP
Not once during any of my media appearances about the Scalia vacancy have I been asked, “Do you believe Democrats will pay a price if the president nominates another hard-left ideologue?” Hosts are curious about whether Republican “overreach” will hurt the GOP in November or whether it will end up looking like a party of extremists — although Democrats have been using the same tactics for decades. This is always the conversation.
Despite the wishful thinking of The New York Times’ reporters and other media, Republicans don’t need to freak out about the potential political blowback over “obstructionism.” We’ve been hearing that the GOP would pay a steep price for its failure to rubber-stamp progressive reforms since the beginning of Obama’s first term. Obamacare. Gun registration. Cap-and-trade. There would be hell to pay, they said, even as Democrats were losing the House, the Senate, more than 900 state legislator seats, and plenty of governorships.
As I’ve argued before, when voters tell pollsters they want politicians to compromise, what they probably mean is they want the other party to compromise. There’s little evidence to suggest Republicans are losing elections because voters find them too principled or too stubborn. I’m sure, however, every lost seat in November will be blamed on this event.
Since the presidential race is shaping up to be a disaster for Republicans (in part because of their perceived lack of fortitude), it’s worth remembering that the executive office isn’t everything — at least, until a progressive Supreme Court allows it to be everything. And because elections have consequences, Republicans have amassed enough votes to reject a nominee and free up some blue state candidates to take more conciliatory positions on SCOTUS, if needed.
2. Better to Lose Later than Lose Now
“OK,” says the radio host, “if you think Obama’s selection is bad, wait until you see what Hillary has in store!” This theory postulates that by preemptively stonewalling all of Obama’s nominees, Senate Majority Leader Mitch McConnell will be left without any ammunition to stop Hillary’s pick. She will have a free hand. If, however, the Senate engages in a tactical surrender now (and I’m sure grassroots voters will love this idea), it will have a stronger case to stop a Clinton pick. Or the Senate could accept the moderate Obama selection. There are few things wrong with this proposition.
First, Hillary might lose.
Second, as it stands, the SCOTUS debate is really about a dozen political issues. Abortion. Citizens United. Guns. After years of gridlock and the administration’s assertive use of executive power, all of our most contentious policy issues are tied up in the courts. Debating the EPA’s unprecedented power grab or talking about gun rights being weakened by the court, tactically speaking, is a lot more productive than spending weeks trying to explain to America why Obama’s telegenic, articulate, quasi-moderate nominee is unacceptable. Republicans would do better to make this a referendum on Obama.
Third, what’s the difference? Obama’s prospective “moderate” nominee would be indistinguishable from the prospective Hillary nominee on important cases. There is no chance of a defection from liberalism for either choice. There will be no conservative Souter, not even a Roberts. If Clinton or Sanders wins (and with every Trump success that prospects grows), the court is likely lost to conservatives, anyway. Why speed up the process?
Finally, we don’t know if Hillary’s choice would be worse. I’m not sure why everyone is convinced that President Hillary Rodham Clinton would inaugurate her presidency with the nomination of a rigid progressive. Obama, who has proven more ideologically driven, was able to pass a massive health-care reform bill because he had a slim majority. This unprecedented event ensured that he would be unable to achieve any legislative success for the rest of his presidency. Hillary will most likely have no such majority. Would she pick the most contentious political fight imaginable right off the bat? If so, her promise to be a “progressive who gets things done” would be dead on arrival.
3. This Is Not Unprecedented and Everyone Knows It
In a press conference yesterday, Obama invented a whole bunch of imaginary constitutional duties for the Senate and struggled to rationalize his own hypocrisy on the subject. If Obama’s performance is any indication, conservatives have a strong case to make on precedent. I mean, does anyone really buy the Democrats’ newfound devotion to original intent?
Obama promised he would put forward someone “indisputably” qualified, intimating that there should be no more discussion. So he was asked, “Does that mean you’ll nominate a moderate?” His answer: “No.” Obama opposed Alito solely on ideological grounds — as Democrats did Bork and others — so there’s no reason Republicans should not embrace the Schumer Doctrine and shut down all nominations.
4. Voters Don’t Want a More Progressive Court
Won’t GOP stalling ignite huge voter turnout and engagement on the progressive left? To this point, the GOP seems more energized, in general. But progressives do rely heavily on the courts to institute change. Wouldn’t conservatives be equally concerned about the unelected court undoing years of progress? I imagine they would. Democrats would be facing the status quo; Republicans, a potentially devastating political event.
Still, the media keep intimating that voters prefer a liberal court. If history is a guide, it’s more likely that the electorate instinctively gravitates toward two-party governance and gridlock — even if it doesn’t know it. A 2015 CNN poll found that 37 percent of Americans thought the Supreme Court was already too liberal — that highest percentage measured since the network began polling the question in 1993. Only 20 percent felt like the court was too conservative, and 40 percent found it just right. So in other words, 77 percent would be happy with the status quo — a 4-4 court with a convincible moderate making decisions.
5. The GOP Has No Choice
Even if nothing above were true, Republicans would still have no choice. The most consequential political upside for a GOP to fight on SCOTUS is this: The party won’t survive if it doesn’t fight. Not in its present form. There’s simply no way those you can accuse the president of abusing and ignoring the Constitution for seven years and then hand him the Supreme Court for the next 20. Not in the midst of a national election featuring an insurgent front-runner whose case is predicated on the notion that the party is led by weaklings. If you do, you might as well pack it in.