Ranting On...Antonin Scalia and the Supreme Court Battle to Come

Justice Antonin Scalia

In what may end up being the biggest political story of the decade (and that includes, somehow, John Boehner's bizarre retirement going to the silver...though Donald Trump winning the White House could bump this down quickly), Justice Antonin Scalia, one of the most conservative and polarizing figures in the Court's recent history, has died at the age of 79.  In regard to his passing, my thoughts are with his family, but I stand by my article I wrote when Margaret Thatcher died in terms of any additional mourning.

While it may be appropriate to wait a day or two to discuss the ramifications of his death, this isn't really the world we live in anymore, and quite frankly this is a situation that comes with huge implications.  The Supreme Court has been the center of major legal landmarks in the past few years, more so than any consecutive period in its history, with everything from Hobby Lobby to gay marriage to voting rights acts going through the body, and that doesn't seem likely to let up anytime soon, as abortion, labor unions, and affirmative action are all on the docket for 2016.  The questions here are quite simple, and threefold:

1. Will President Obama nominate a candidate, and if so, who will it be?

The reality is that Barack Obama is, right now, probably meeting in a closed room somewhere wondering what to do next.  Expect a cursory "dearest sympathies" situation from the president despite the fact that he and Scalia seemed to be arch-rivals in political terms, and expect him to have called every major Democratic player (including Hillary Clinton and Bernie Sanders) to sit tight on attacking Scalia or Republicans too harshly, as to not appear opportunistic over someone's death.  The president will likely even attend Scalia's funeral, even though he doesn't really like to attend political funerals for people he wasn't personally close toward.

That being said, President Obama is late in his second term, and is concerned about legacy in the strongest way imaginable, and he knows that giving the Democrats the Supreme Court for the first time in decades is an opportunity he simply cannot take lightly, or ignore at all.  For all of those people who are writing about the political reality of President Obama putting off the nomination because they won't be confirmed anyway, he can't cower back now or he won't get anything done the next eleven months, period.  65 million people voted for President Obama to serve four years, and you can bet that's a statement of fact that a lot of his supporters and surrogates will be trumpeting hardcore in the coming weeks as a nomination comes out for Obama.  No Supreme Court battle has ever lasted longer than 125 days if reports I'm reading are to be believed, the president has 342 days left of his presidency-you do the math.

Justice Merrick Garland

There are really, in my opinion, three ways President Obama could handle this.  One, he could hope that moderate Republicans and the public will realize that leaving the seat open for a year is a bad idea, and name someone like Merrick Garland, a moderate justice who would probably be the best the GOP could hope for in terms of a nominee from the current White House, and risk potentially giving the world another Anthony Kennedy rather than following in his solidly liberal tradition in Sonia Sotomayor and Elena Kagan.  This predicates itself into assuming that the Senate would base this on its merits, though, and you can bet that with Rubio and Cruz both on the campaign trail as well as in the Senate they won't allow for pretty much any candidate to make it.  Secondly, Obama could go for a very qualified, but progressive contender in the vein of a Kagan nominee.  Provided that he or she is squeaky clean in terms of their credentials, it would still be hard for the GOP to win an attack from a public domain perspective, as denying that person the seat would be pretty much the definition of "playing politics."  Bonus points if it's someone who has already been confirmed for a lower court by the same senators who would deny Obama the chance to promote them (see Sri Srinivasan).

Finally, Obama, if he truly wants to get the person nominated and not just play a public game, could go with a sitting US Senator, which may be the hardest for the Senate to deny because he or she would be one of their colleagues.  By my count, there are nine US senators who are Democrats, from states with a Democratic governor (not putting their seat at risk, though if it'd help I think the Supreme Court seat would be worth giving up a Senate seat for a few months), and are under 65.  A couple of them may want to recuse themselves because they could be on Hillary Clinton's shortlist (Mark Warner, Tim Kaine) or are too conservative on select issues to be considered (Bob Casey, Jr. with abortion or Michael Bennet on the environment).  Additionally, Chris Murphy never really practiced law (he headed straight into politics) and Kirsten Gillibrand's role in the Philip Morris tobacco cases would be too much of a mountain to climb (it's always worth remembering she'll have to defend this if she ever runs for president, as she seems likely to do sometime in the next couple of decades), but that would still leave Sens. Claire McCaskill, Sheldon Whitehouse, and Amy Klobuchar as fitting the bill.  All three have extensively worked in the public sector (people generally like prosecutors better than defense attorneys), and have been in the Senate for ten years (weirdly all are from the same Senate class), so they presumably have contacts on the other side of the aisle and I suspect could find moderate Republicans who have sponsored legislation with them or even publicly praised them.  Obama may be best off if he were to pick one of these three as the nominee, as they would be the most realistic in terms of actually getting confirmed.

Sen. Mitch McConnell (R-KY)

2. Will the Republicans consider ANYONE?

The question here is whether or not the Republicans will actually consider any single human being (at least one that is feasible-Barack Obama isn't going to nominate, say, Rush Limbaugh).  From the sounds of Mitch McConnell, Ted Cruz, and Marco Rubio, it doesn't appear like they will.  I do wonder if there might be some Republicans, especially those like Mark Kirk and Kelly Ayotte who are about to go before voters (not to mention the likes of Thad Cochran, Orrin Hatch, and Dan Coats, who will never have to go before the electorate again) who might consider the right nominee, but we'll know that in the next couple of days (in which case Obama should go the Merrick Garland or Senate route, rather than trying to prove a point with Srinivasan-a bird in the hand, and all that jazz).  However, I don't see them actually considering anyone, which means we're about to see a lot of political theater, which may make it questionable over who would actually want to go trough this rigamarole.  This admittedly hurts my senator theory above, as I doubt McCaskill, Klobuchar, or Whitehouse wants a loss on their records before going before the electorate in 2018, though again someone like Garland or Srinivasan, seeing even the slimmest of shots of achieving their dream of being on the top court, may be willing to put up with a long shot (Garland is 63-if it's not now it's never for a man who has been considered for the high court for over twenty years).

3. What Will This Mean for 2016?

The larger question here is what this will mean for the November elections.  Every four years political journalists write repeatedly about how the nation should consider the ramifications of an increasingly activist court when they are casting their ballots, but US voters are more likely to vote with something else in mind.  However, this year, especially if Scalia's seat is still open come November, America will realize that the next candidate will decide who is in the majority on the Supreme Court quite literally, and that's an easier argument to be made than some hypothetical.

That will have major ramifications in the race for the White House (believe me-both sides will be talking about it), but also in states like Illinois, New Hampshire, Pennsylvania, Ohio, and Wisconsin, where the current senators arguments that they are bipartisan will be severely undercut if they also are denying a qualified judge onto the court.  It will obviously not be the only issue, but it will be worth noting whether or not people side with the Republicans (arguing that it should be the people running, and not the incumbent who is almost on his way out) or the Democrats (arguing that Obama was elected for four years not three) who win the battle.  Already some pundits (Larry Sabato and Charlie Cook) are pointing out that if the shoe were on the other foot the Democrats would be making the same argument, but the public doesn't always think that way, and the Democrats can counter that they confirmed Anthony Kennedy in 1988 the last time something like this happened, giving them the higher moral ground.  The Republicans are admittedly in a tough spot; they can't confirm a Democrat to replace Scalia or they'll risk primary races for the rest of time but they aren't likely going to enjoy public support if they stall for months on end over such a high-profile appointment (this will be far more public than even Loretta Lynch was last year).  And this is just the political ramifications for this year-it's highly possible that either A) a new Democratic Supreme Court justice could mean Citizens United is reversed or the Voting Rights Act finds new life or B) that a President Clinton/Sanders with a Republican Senate could keep this fight up for years.

Those are my thoughts-this is an emerging story so a lot of these questions could be answered soon or far, but feel free to discuss them in the comments!