So let the jiggery-pokery — in the famous words of Justice Antonin Scalia — begin.
Actually, we’re a little late. The jiggery and the pokery are already both in full swing. As you surely know, Scalia died Saturday morning, and we’ve re-confirmed in the last few days that American democracy isn’t doing so great either.
This is where matters stand. With Scalia’s death, the Supreme Court is now deadlocked 4-4 between liberals and conservatives. And so, the successor to Scalia may, in fact, be the most consequential appointment in judicial memory. It was sufficiently important that Barack Obama made a pre-Republican-debate appearance Saturday night to convey his condolences and, more to the point, announce that he planned — because it’s his job — to send the Senate a nominee to replace Scalia.
He felt the need to do so because Republicans were lining up to say that Obama, as a lame-duck president, should step aside — as if he weren’t president for the next 11 months — and let the next president make the decision. In a pre-emptive attack, Mitch McConnell had already said he would block any Obama appointee, no matter who it was, presumably even if it were one of Scalia’s nine children.
In other words, the Republicans are prepared to emasculate the court for the next, say, 15 months or so — with all those expected 5-4 decisions turning into 4-4 ties, meaning nothing actually gets done — so Obama can’t pick a third justice.
This is, let’s say, untenable. It’s also a likely Republican disaster.
By ensuring that this appointment process becomes a political brawl, it also ensures that this appointment becomes a focal point in the 2016 presidential election as well as in U.S. Senate elections.
This is a yuge problem for Republicans on a number of fronts.
First, although I don’t have any polling on this, I don’t think I’ll get much argument by saying that the state of the courts matters more to typical Republicans than to typical Democrats, even when Republicans have majorities. Just look at how the very conservative Chief Justice John Roberts has been vilified by the right for his two votes on Obamacare. With the vacancy becoming an open sore on the judiciary, no one will have to be reminded of the stakes — on both sides — in the coming election.
Second, Republicans have already announced that this is all about politics. We’re supposed to believe, as Roberts recently said, that the courts are above all that. And if no one actually believes that any more, we’re still supposed to aspire to it. And even if it’s probable that Democrats would do the same thing if positions were reversed, the fact is that they’re not reversed. And so, Republicans will have to defend against attacks like the one from Harvard law professor Sen. Elizabeth Warren who said that Republicans were showing they didn’t really care about the Constitution, except, you know, when it was convenient.
She put it this way: “Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate,” she wrote. “I can’t find a clause that says ‘…except when there’s a year left in the term of a Democratic President.’”
If you watched the unruly, and not in a good way, GOP debate, you saw that the jig — and the jiggery-pokery – was up. Ted Cruz and Marco Rubio, in a rare show of comity, both explained that it has been more than 80 years since a president nominated a Supreme Court justice as a lame duck (Rubio) or got one confirmed in an election year (Cruz). It so happened it was the same thing that Chuck Grassley, who’s chair of the Senate Judiciary Committee, had been saying. Grassley might have known better. In 1988, in very much an election year, Anthony Kennedy was unanimously confirmed — and one of the senators voting for him was, yes, Chuck Grassley.
The real rationale is that conservatives desperately want a conservative to succeed Scalia, a conservative icon for three decades. It’s not that you can blame them for that, it’s just that you can’t defend, constitutionally speaking, a Senate that would refuse to at least consider Obama’s nominee.
The politics are pretty clear. Obama will probably nominate an appellate judge who was unanimously approved by a Republican Senate (that gets to the obstructionist angle) or a Latino (one more reason for the Hispanic vote to go Democratic) or maybe even a pro-choice, pro-gay-rights, anti-Citizens United Republican (if one actually exists).
My guess is that Obama’s nominee — or nominees – will get a hearing because how could they not? And the hearings will be ugly — because that’s what they are these days — and the fight will drag on for months. And the voters won’t be able to miss either the ugliness or the fact that dysfunction is the Senate’s default position or that the next president could easily have as many as four of these battles to get though, with the stakes growing higher with each one.
Photo credit: Stephen Masker, Creative Commons, Flickr.