The death of Supreme Court Justice Antonin Scalia immediately raises the stakes for the Republican primaries and really clarifies the contest—and in ways I don’t think anyone has thought out quite yet.
Of course, this may mean that the next president will have to appoint a justice who maintains the ideological balance of the court. If it were a matter of replacing, say, Justice Kennedy—who can swerve occasionally into constitutionalism but has a tendency to wander wherever his personal predilections take him—this would not be quite as momentous a decision. But Scalia was one of the court’s most committed and reliable constitutionalists, one of the most likely to assert constitutional limits on the power of Congress and the president.
Just weeks before his death, for example, Scalia joined a narrow 5-4 ruling—opposed en bloc by the court’s “liberals,” of course—that prevents the implementation of the Obama administration’s absurdly utopian “Clean Power Plan” of global warming regulations. Those with a longer memory will recall that Scalia penned a scathing dissent in 2007 opposing the Supreme Court ruling that gave the EPA power to regulate carbon dioxide emissions in the first place, a power never granted to it by Congress. In one of his trademark lines, Scalia remarked that under the majority’s free-form interpretation of the law, “everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.'” A jurist like that is hard to duplicate. So we’re going to need a Republican nominee who would be likely to choose a hard-core constitutionalist as one of his first decisions on taking office.
But that depends on a very large presumption: that the Senate will be able to hold off filling the Scalia vacancy for an entire year. President Obama will certainly exercise his constitutional prerogative to nominate a successor to Scalia. The question is whether Senate Republicans will exercise their constitutional prerogative to withhold their consent to his selection.
There are two schools of thought about how to deal with this problem. The first is for the Senate to declare that they simply won’t consider anyone Obama nominates and demand that the decision be left to the next president. This has the disadvantage of allowing Democrats to scream about obstructionism and to portray Republican resistance as motivated, not by real constitutional concerns, but by unreasoning hatred of President Obama. Not that they aren’t going to do all of those things, anyway. But this approach does have the virtue of cutting off the possibility of an Obama nominee at the very beginning, reducing the chances of some of the Senate’s squishy moderates caving in and voting to confirm Obama’s nominee.
The other school of thought is that Republicans should consider Obama’s nominees, then slow-walk the confirmation process, holding a series of tortuous committee hearings in which they expose every left-wing bias in the nominee, giving them a basis to reject each one, one after another. The downside of this approach is the risk that Obama will eventually nominate someone so blandly moderate that the less reliable Republican senators will cave in and vote “yes.” I don’t think that’s extremely likely. Just about every Republican in the Senate realizes that they have to drag this process out until after the party’s national convention this summer, because there’s no way they can face their rank-and-file supporters and tell them that they just put Obama’s pick on the court and took that choice out of the hands of their own party’s nominee. By then, the election campaign will be in full swing, at which point Senate Republicans can simply say: it’s too close to the election now, and the next president should decide. In effect, this is a hybrid approach: spend six months considering one or two nominees and rejecting them—then shut the whole process down until next January.
The upside of this approach is that it puts the debate squarely in the realm of ideology rather than parliamentary procedure. Republicans should set a clear and loudly announced standard at the beginning: we will only approve a nominee with a record of supporting strict constitutional limits on government power, including its power over the economy. Since Obama will never select a nominee who meets that criterion—it’s not the legacy he wants to be remembered by—that gives Senate Republicans a reason to reject everyone he does put forward. If Obama nominates a “living constitution” type, they can reject him for being a big-government leftist. If Obama nominates a muddled, middle-of-the-road moderate, they can reject him for having no firm principles. If Obama nominates someone with a record so scrubbed clean of stated ideas and difficult decisions that nobody has any idea how he will rule on anything, they can reject him for being a mystery man. Each of these options provides a clear message Senate Republicans can rally around and present to the public. And each of those messages will have the additional advantage of being true.
But this will only work if every Senate Republican keeps clearly in his mind the two basic rules of the Supreme Court that I listed last summer. The first rule is that doubt about how the court will rule in any important case is always doubt about how the Republican-appointed “conservative” justices will rule. There is never any doubt over how Democrat-appointed “liberals” will decide, because they consistently rule in line with partisan political requirements—as they have on ObamaCare, gay marriage, global warming regulations, and everything else. Second, Republican appointees sometimes move to the left, but Democratic appointees never move to the right.
If you remember these rules, you realize why there is no such thing as an innocuous “moderate” Supreme Court nominee. Anyone without a proven track record of being a rock-ribbed constitutionalist should be presumed to become one of the court’s “liberals,” and any “liberal” should be presumed to be a rubber stamp for the political agenda of the left—which makes the Supreme Court meaningless as a check on big government and renders the Constitution a dead letter.
If Senate Republicans can hold this clearly in mind, they can prevent President Obama from tipping the balance of the Supreme Court, whichever tactics they choose to use to get to the result. But if the Senate Republican leadership isn’t able to hold out—and we’re talking about Mitch McConnell here, so adjust your expectations accordingly—then that doubles the stakes for the presidential race.
If the next president does not have the opportunity to choose a replacement for Antonin Scalia, the next oldest justice on the court is Ruth Bader Ginsburg, who at age 82 is three years older than Scalia. After that is 77-year-old Stephen Breyer, who should also be considered in the actuarial danger zone. So it’s quite possible that the next president will either have the ability to tilt the court farther to the right, or at the very least to tilt it back to the narrow 5-4 majority we’ve become accustomed to.
But here’s the rub: we won’t know the outcome of the Scalia replacement until after Republicans have chosen a nominee. If the question is: can Mitch McConnell hold out long enough to prevent President Obama from putting his nominee onto the court, then we won’t know until he’s actually done it, which will be late summer at the earliest—which is to say, after the Republican convention.
That leads us to the most important upshot of Justice Scalia’s passing: the only constitutional limits on the next president will be those he himself chooses to recognize.
We’re not just choosing a president to appoint a Supreme Court justice who will restrain government. We’re voting for a president who will restrain himself even if the Supreme Court doesn’t do it.
That’s what really clarifies the nomination race: the prospect that the Supreme Court could be lost as any kind of brake on the power of the executive. There’s an old leftist presumption about how it is solely the Supreme Court’s job to interpret and enforce the provisions of the Constitution. But the Founders were clear that the Constitution is binding on all branches of government, and that it is also the job of Congress and the president to ensure their own obedience to its limits. That makes it clear how we have to choose a president.
Among the current nominees, who do you think understands the Constitution and will be willing to discipline himself and not reach beyond his constitutional powers—without needing to have outside discipline imposed on him? Or to put it more simply: when you hear the phrase “self-discipline,” which candidates do you think that description might apply to, and who does it not apply to?
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