What kind of a person willingly sacrifices themselves for the good of their political party? That’s a question to which we’re about to get at least a partial answer as, if the New York Times is to be believed, President Obama is near to making a choice as to the name of the person that he will nominate to replace the late Justice Antonin Scalia. A front-page article in today’s Times claims the field has been narrowed down to three federal circuit judges. But though the Senate majority caucus has indicated that it will not consider the confirmation of anyone the president sends to them, the administration is preparing for a full-court press on behalf of the lucky nominee. Armed with polling data that says the GOP’s stance will be unpopular, the White House is about to launch a campaign intended to shame or pressure the Senate into giving the nominee a hearing.
But while it seems that we are going to be hearing a lot about Republicans flouting the Constitution and of the worthiness of the president’s choice, the first question we should be asking is not about that person’s credentials. Rather, we should ask what will be the point of this exercise? The answer to that is, of course, politics, pure and simple.
According to the administration, the three finalists are all highly qualified jurists who have been previously confirmed by the Senate and can be sold to the country as moderates. The plan will be to present the nominee as being a centrist that will place the court in balance rather than tipping it to the left now that Justice Scalia’s conservative voice has been stilled by death. But anyone who thinks that President Obama is going to give a lifetime appointment to someone that cannot be counted upon to add a fifth vote to the liberal faction on the Supreme Court is not thinking seriously about the issue. At stake here is the future of American law, and decisions that the president clearly hopes will swing away from the defense of the First and Second Amendments that the current conservative majority has protected.
Given the stakes involved, there seems to be little indication of many cracks in the ranks of Senate Republicans. Moreover, the GOP can point to the past statements of Democrats when they were in a similar position. They will answer Obama’s pressure by merely pointing to the speech made by current Vice President Joe Biden in June 1992 when he was chairman of the Senate Judiciary Committee and vowed that the Senate — then controlled by Democrats — would not even give a hearing to anyone nominated to the high court by the first President Bush in the months before the presidential election. They will also note the fact that Senator Chuck Schumer — who will lead Senate Democrats after the next election — made a similar statement in 2007 about the prospect of President George W. Bush nominating anyone to the court in the year and a half that still remained in his term.
At both those times, Democrats made it clear that any new appointments would have to wait until after the people voted. Of course, the hypocrisy cuts both ways. GOP leaders like Senate Majority Leader Mitch McConnell said a Republican president shouldn’t be stopped by Democrats from making an appointment. But the notion that principle, rather than partisan loyalties and ideology, is at play here on either side of the political divide is laughable. With a divided government and an election looming in which the voters will decide control of both the executive and the legislative branches, the only reason not to wait until the people speak is more about President Obama wishing to solidify his liberal political legacy than any high-flown talk about the Constitution.
Nevertheless, the White House is acting as if enough cutting comments from Democrats and their surrogates in the media will be enough to make McConnell give up. Can they possibly be right?
It’s true that given the willingness of much of the media to act as the Democrats’ cheering section, Obama can give McConnell and his caucus a rough time. The experience of the 2013 government shutdown in which the press accepted that only the GOP was at fault rather than covering it as an impasse in which both parties were unwilling to budge is influencing Obama’s judgment here. Having bested the Republicans before in such a standoff, it’s understandable that he thinks he can do it again.
That assumption is based on a belief that the Republicans’ refusal to give him a third Supreme Court nomination will somehow turn the election against them. Faced with such a prospect Democrats talk about McConnell folding like House Speaker John Boehner eventually did after the shutdown started.
But while the Republicans will take a beating from their usual sparring partners in the press, the absence of a ninth justice on the Supreme Court is not the moral equivalent of a government shutdown. There will be no sob stories about people suffering from the GOP’s obduracy. Moreover, all the talk about the need to give issues a vote will be coming from a president who filibustered a GOP SCOTUS nominee in 2006 when he was in the Senate. Nor will it escape the public’s notice that Obama’s belief that important issues deserve an up or down vote was noticeably absent when he successfully pushed for a filibuster of a vote on the Iran nuclear deal. Then votes weren’t any more sacred than the Constitution’s demand that treaties requiring a two-thirds vote rather than merely the one-third plus one to sustain Obama’s veto.
In other words, the court controversy will be fierce on Capitol Hill and on the cable news networks but won’t affect the rest of the country. The party bases — both Democrat and Republican — will be fired up. But the idea that this can turn the November election is nuts. The 2016 vote will hinge on the identity of the presidential nominees not the fate of Obama’s sacrificial lamb.
Democrats are also ignoring the fact that once we get beyond the GOP’s “no,” there won’t be much to cover? Unless the president is prepared to ask a sitting federal appeals judge to humiliate his or herself by lying down in front of the offices of McConnell or Judiciary Committee Chair Chuck Grassley, what exactly is he going to do to keep this story alive other than to talk about it? While a full confirmation process will allow for plenty of debate and chances for both sides to seize the initiative, if McConnell sticks to his guns, this story will consist of a GOP refusal and just endless talk about it. Even the liberal press will bore of it before long.
But there will be one tangible result of this exercise in wishful thinking by the Democrats. The person Obama nominates will be examined under a microscope, battered by opponents and turned into a human political football with no hope of actually getting onto the court. Nor will any of the three be likely to have a chance at a SCOTUS nomination even if the Democrats win next year since Hillary Clinton will almost certainly want someone that will be more liberal than any of the compromises Obama will want. That means Republicans are gambling on winning in November but given the likelihood that even Obama’s supposed moderate will shift the court to the left, they don’t have much of a choice.
Thus, for all of the talk about hounding the Republicans into submission, the outcome of all this effort by the White House is far from uncertain. The entire gambit is the moral equivalent of the dozens of Republican votes to repeal ObamaCare. It’s a political stunt and nothing more.
