Knockout: Why Obama Wants a Supreme Court Fight and How Republicans Blew It Before It Starts

Knockout: Why Obama Wants a Supreme Court Fight and How Republicans Blew It Before It Starts


After the surprise death of the Supreme Court's most consequential conservative justice, Antonin Scalia, the Republicans pronounced in unison that the President of the United States should be stripped of his Constitutional authority to appoint a replacement and that the Senate should avoid its Constitutional responsibility to confirm one.

Failing to find any constitutional ground to deny a sitting president his right, however, Republicans came up with a precedence meme: no justice has been confirmed in a presidential election year for 80 years. For one thing, that's not true, as Justice Kennedy was confirmed in 1988. For another, the last time the Senate simply refused to vote on a outgoing president's nominee for an associate justice spot - the outcome Republicans would like to impose - was in 1853.

The Republicans have more trouble than history, of course. The Constitution itself. Article II of the Constitution is clear in its pronouncement that the president "shall" appoint Justices to the Court with advise and consent of the Senate. Shall. Not may. Not if he feels like it. Not if the Senate feels like it. Not if people running for president in the party opposite to the president's feel like it. Shall.

Speaking last night, the President was unmoved by Republican calls to disobey the Constitution. He made it clear that he will nominate a replacement, and that the Senate should be prepared to perform its Constitutional obligation of voting on his nomination. Hillary Clinton spoke out forcefully against the GOP's plot to turn the Constitution on its head, and Bernie Sanders called out his Senate colleagues.

Then there's Harry Reid. He may only be the minority leader in the Senate, but he's one of the sharpest, most brilliant tacticians in the modern US Senate, and he has thrown down a gauntlet, challenging Republicans' faux respect for the Constitution.

As many have pointed out, the Supreme Court is now split 4-4 between liberal and conservative justices, and because of President Obama's appointments to the appeals courts, 9 out of 13 of those now have a majority of Democratic appointees. If the Supreme Court is split 4-4, the Appellate decision stands, which are mostly favorable to liberals. Even the cases that have already been argued, the Court is likely to get stuck at 4-4, which mostly would end up disappointing conservatives.

But the paradigm of the tie going to the president is only the tip of the iceberg. The bigger part of the advantage that the President and Democrats have is the actual fight over the nomination and confirmation process.

Say the President nominates someone like Sri Srinivasan, who was confirmed to the DC Circuit by a 97-0 vote of the Senate in 2013. Among those 97 Yea votes were those of Sens. Cruz and Rubio, as well as GOP Leader McConnell, all calling for the current President to abdicate his Constitutional responsibility. What will people who have already voted for a judge to be on the federal bench say as a reason to oppose the same judge that won't sound political and hollow?

The funny part is that the President doesn't even have to nominate a consensus candidate like Srinivasan to paint the Republicans into a corner. Republicans have already helpfully handed the President all he needs to paint their opposition to his eventual nominee as political and not substantive with their incredibly shortsighted to demand right away that President Obama stay away from nominating a new Justice.

There is no way they can stop the president from exercising his Constitutional power, and because they have shown their hands early, the President and Harry Reid can easily frame any Republican attack against his inevitable nominee as spite rather than any serious concern on jurisprudence.

Once painted into a political corner, Republicans may well have to back down from their initial stand just to get out of that corner.

Harry Reid, I am certain, has other tricks up his sleeve to frustrate the Republican leadership by essentially ending the Senate's business until the President's nominee gets a vote. He could use executive sessions (the motion is non-debatable) to halt business, block unanimous consent requests for short breaks or recesses, and pull every parliamentary maneuver to make Republicans go on record. Even worse for the GOP, by constantly asking for procedural votes on the nomination, he can force Republicans to show up and be on the Senate floor.

And no Democratic Senator will pay a political price for standing with Reid and President Obama on this. It will be like the GOP's government shutdown, part deux. Democrats will coalesce around the Constitutional principle of giving the president's nominee a vote, and Republicans will be seen as the party of destruction, endangering the very operation of government itself. And this time, there won't be a malfunctioning website to go after when it's done.

The political cornering of Republicans will be especially important because this is an election year. The longer Republicans drag out this fight, the more it will galvanize an electorate favorable to the Democratic party. As Ted Cruz helpfully reminded everyone at last night's CBS debate,

We are one justice away from a Supreme Court that will strike down every restriction on abortion adopted by the states. We are one justice away from a Supreme Court that will reverse the Heller decision [on individual gun ownership]... We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans [Read: require employers to butt out of women’s health care decisions.]

We are also just one justice away from the Supreme Court no longer holding the notion that money is speech. We are one justice away from restoring the Voting Rights Act's protections for minorities. 

All of these issues - women's right to reproductive care without interference from their states or their bosses, gun safety, money in politics, voting rights - play in favor of a blue electorate, if only they come out to vote. A high profile fight over the President's nominee to replace Scalia - especially one in which Republicans are seen as political obstructionists rather than conscientious objectors - will ensure those voters come out. And they will come out to punish the Republicans even if - perhaps more accurately, when - the President eventually wins the fight to seat his nominee. In other words, Republicans may end up with the worst of both worlds: President Obama's appointee replacing Scalia, and a 16-year Democratic reign in the White House.


Like what you read? Chip in, keep us going.

Doers and Dreamers: LBJ Versus Bernie Sanders

A Question on Bernie Sanders and Super PACs