February 29, 2016

Justice Scalia the giant cannot be replaced. Justice Scalia, the member of a sharply divided court will have to be.

In the last half century the courts – the Supreme Court in particular – have become the forum of choice for partisan minorities of both the right and, especially, the left to inflict their will on the majority by means of some strained Constitutional or statutory interpretation when they fail at the ballot box or in the Congress or state legislatures. Competing conservative and liberal legal philosophies have developed, roughly corresponding to conservative and liberal political positions.

It is no coincidence that, during the same 50 years of the Court’s increasing use as a political weapon, Supreme Court nominations have become progressively contentious. Variables affecting the intensity of debate are whether control of the White House and Senate is divided, the effect of the vacancy on the philosophical balance of the Court and the proximity in time to the next election, particularly a Presidential election. Even when the President’s party controls the Senate, another factor is whether the minority party has the 41 votes necessary to sustain a filibuster.

Any Supreme Court vacancy now produces a set piece of theatre in which one party piously proclaims the President’s Constitutional duty and right to nominate and have confirmed a nominee of his choosing. The other party, equally devoutly asserts the necessity to “maintain balance” on the Court or the need to give the voters a “voice” in the selection. After a change of party in the White House and another Supreme Court vacancy arises in four or six years, the players switch roles and spout with equal fervor the lines earlier spoken by the other party. The discussion then descends to abortions -“back alley” or “partial-birth,” depending on who is talking – and the gun rights of hunters, on one hand, or the protection of children from school shootings, on the other.

The politicians are as oblivious to the reasons for public disgust at this spectacle as they are to the reasons their own voters have abandoned the establishment candidates for President for Bernie Sanders or Donald Trump.

Here’s the truth. There is nothing high-minded about it. The appointment of a Supreme Court justice, both the nomination and the confirmation process, is now always, repeat always, an exercise of raw political power.

The stakes could not be higher. If President Obama were able to appoint a liberal to the Court the former 5-4 conservative majority would become a 5-4 liberal majority with the former “swing” vote of Justice Kennedy occasionally making it 6-3. At present Obama cannot get a liberal nominee confirmed and the Senate cannot get the President to nominate a conservative one.

The Senate Republican Majority Leader, backed by a letter from the Chairman and all the Republicans on the Senate Judiciary Committee, has announced that the Senate will not consider any nominee at all until one is made by the newly elected President. They perform their Constitutional function by that action as much as they would by voting a nominee up or down. The announcement is an action – or inaction – they are perfectly entitled to take. It is simply a different method of rejecting a nominee.

The choice of the method of rejection is also a purely political calculation – which method is less likely to be harmful to Republican Senate candidates in the fall election? The current position of inaction to give the voters a “voice” in the new justice is fairly easy to defend so long as the nominee is merely an abstraction. Once the President nominates a specific human being – a brilliant but reasonable person, say, with an attractive family or at least a nice dog and an appealing life story – the position becomes problematic.

President Obama can and should make a nomination. What he must decide is whether he wants submit an unconfirmable strong liberal nomination that would “fire up his base” or would rather nominate a demonstrably moderate justice to tempt the Senate majority or at least make the strongest case possible against Republican Senate candidates that their unwillingness even to provide a hearing is unreasonable.

A device of Presidents making recent appointments has been the “stealth candidate,” a judge on a Circuit of the U.S. Court of Appeals, previously and relatively recently confirmed unanimously or nearly so without any decision since then, justifying rejection. An ambitious but prudent lawyer or judge avoids leaving a paper trail of high profile or controversial writings. In the present circumstances a “stealth candidate” with a thin or nonexistent record will not get the benefit of the doubt.

Democratic Strategy

What President Obama should do is find a nominee who has been on the Circuit Court for at least ten years with an established record as a moderate – not a stealth candidate – preferably originally appointed by a President Bush. To increase the chance of confirmation, the nominee should be over 60, reducing the stakes on both sides. While not Obama’s first preference, such a candidate would, from his ideological point of view, be a great improvement over the conservative Scalia.

The White House has leaked clues that the President may be considering a moderate, even a moderate Republican. One such, promoted by Senate Minority Leader Harry Reid, Republican Governor Brian Sandoval of Nevada has told the White House he did not want to be considered.

Sandoval’s pass illustrates one difficulty presented to Obama by the Senate Republicans’ stated refusal to consider any nominee. Quality candidates may be reluctant to go through the rigorously intrusive background checks followed by intensive public scrutiny if nominated with no chance of even being considered by the Senate. That may have been a factor in the timing of McConnell’s seemingly premature announcement.

Republican Strategy

In the case of the nomination of a documented moderate, the Republican majority in the Senate must decide whether to reconsider its position, grasp the olive branch and get a justice they can live with, however poor a substitute for Scalia, or reject the nominee and take the risk that they may be in a worse position in January.

There are four permutations of control of the White House and the Senate in January of 2017. Only one, Democratic control of both, is not the same or an improvement, from a Republican standpoint, over the present impasse. Moreover, even if the Republicans win the Presidency, there is no certainty that a President Trump – a “stealth candidate” himself – would make a nomination satisfactory to the conservatives.

The argument will be made that nearly a year with only eight justices will have a harmful disabling effect on the court. History shows that not to be the case. A few unpalatable decisions will stand temporarily but history shows that most important cases will be rescheduled for further argument with the new justice present.

From their point of view, the Republicans should remain firm in their intransigence at least until a specific person is named. If the nominee is not a proven moderate, they may simply continue on the same course.

None of the Republicans on the Judiciary Committee up for re-election this year look to be in any danger. Other Republicans running for re-election can call for hearings, secure in the knowledge that the Majority Leader and the Committee will ignore them. Whatever damage they sustain from the absence of hearings, the Republicans would be much worse off, if hearings were held giving a very public forum to the nominee and many supporters.

President Obama will use his “bully pulpit” to demand that the nominee get “at least a fair hearing.” Other Democrats will keep up the call for a hearing and the media will join them. The cable news networks, even Fox News, will press for hearing for the same reason they like a bloody murder or a house fire on a Sunday. It’s good for ratings.

If he were quite certain the Senate will not act on his nominee, Obama could nominate someone perhaps distasteful to his base but so eminently moderate that the Senate’s denial of consideration would look foolish. Of the 34 Senate seats being voted on this year 24 are currently held by Republicans and only 10 by Democrats. A net gain of 5 Senators would give the Democrats control. It is not impossible that January of 2017 could bring a Democratic President and Senate and Republicans regretting their failure to confirm this years’ nominee. Even a Republican President Trump would be unreliable on the subject.

Prudence requires that the Republicans, at least privately, reconsider their position when a nomination is made.