Political War Over Supreme Court Getting Ready To Go Nuclear

The coming political battle over President Obama's effort to fill the vacancy created by the death of Justice Antonin Scalia will likely be unlike anything we've seen before.

Scalia Seat SCOTUS

With the selection of a Supreme Court nominee just days away, both Republicans and Democrats are gearing up for an epic Supreme Court battle

President Obama and his Republican opponents are making the final preparations for a public relations war over the vacancy on the Supreme Court.

It is likely to be one of the most heated confirmation fights in recent memory, with both sides expected to unleash television ads, opposition research and grassroots organizing aimed at gaining the upper hand for the November elections.

Political action groups and party committees have already fired shots across the bow, previewing the frenzy of activity that is expected once Obama nominates a replacement for the late Justice Antonin Scalia, a nominee Senate Republican leaders have pledged won’t receive a hearing or a vote.

“I think this is going to be as big a fight as I’ve seen,” said Drew Courtney, communications director for People for the American Way, a liberal group involved in the nomination fight. “Even knowing we are in the Donald Trump election year, this is going to stay really big.”

The stakes are high for both sides, as Obama could shift the ideological balance of the court by replacing Scalia, a staunch conservative, with a liberal jurist.

The Republican National Committee (RNC) announced the formation of a task force Monday to launch radio and digital attack ads, circulate petitions and coordinate media appearances to help Senate Republicans stand firm against confirming any nominee.

The party plans to call out Democratic presidential and Senate candidates for their “hypocrisy” on judicial nominations, highlighting comments made by Vice President Biden in 1992 suggesting that any Supreme Court nomination should wait until after the presidential election.

“This will be the most comprehensive judicial response effort in our party’s history,” said RNC Chairman Reince Priebus. “If the president wants to break with decades of precedent by pushing through a nominee in an election year, we’re going to vet that person and put their real record on display.”

The RNC’s target list includes Sen. Michael Bennet (D-Colo.), who faces a tough reelection race, and Senate candidates in nine other states including Ohio, Florida, New Hampshire and Wisconsin.

Groups on the right also plan to go after Obama’s nominee and have already begun attacking some of the leading contenders.

The conservative Judicial Crisis Network said last Friday it is spending $250,000 on TV and digital ads slamming Jane Kelly, an 8th Circuit U.S. Court of Appeals judge mentioned as a potential Supreme Court pick because of her ties to Senate Judiciary Committee Chairman Chuck Grassley(R-Iowa).

The spot paints Kelly as a “liberal extremist” because of her past as a public defender, when she represented a client on child pornography charges who was later convicted of murder.

The group acknowledged that targeting someone who hasn’t yet been nominated is unusual.

“It certainly is a real significant bump up from what we did with the [Elena] Kagan nomination,” said Carrie Severino, the group’s chief counsel and policy director. “The stakes are dramatically higher. … There is a potential to dramatically shift the court to cement liberal dominance.”

Severino said her group has enlisted the research arm of America Rising, a prominent conservative group, to help independently vet Obama’s potential nominees to expose potential flaws.

America Rising’s companion group, AR2, is assisting the RNC campaign.

During Kagan’s nomination in 2010, Severino said her group was playing catch-up with vetting and opposition research. This time, she said, it would be ready with reams of information on the day the nomination is made.

But the White House and its liberal allies are formulating an offensive of their own.

Obama administration officials have enlisted former colleagues, such as 2012 deputy campaign manager Stephanie Cutter, to draw up plans for a media and political onslaught designed to shame Republicans for their Supreme Court blockade.

Typically, Supreme Court nominees remain silent except for their appearances at confirmation hearings and meetings with senators

That could change this time. The White House and Democrats could rely on nontraditional tactics, such as mock hearings or question-and-answer sessions at law schools, to get the nominee exposure.

“I think what you will probably see is the nominee being more active,” said one person familiar with the talks.

“This is not a conventional nomination process the Republicans are proposing,” the person added. “So it can’t be a conventional or traditional response. Not every tactic under the sun is on the table, but a there are lot more tactics than you might think.”

Obama could also use his bully pulpit to make the case for his nominee, something that press secretary Josh Earnest suggested Monday.

“He was a leading advocate for their confirmation,” the spokesman said of Obama’s role during the confirmation fights over Kagan and Justice Sonia Sotomayor. “And he made a strong case with respect to both nominees testifying to their credentials and their experience and their judgment.”

Liberal action groups are heavily
involved in the messaging effort. The Alliance for Justice recently sent a letter to Senate leaders from 356 law professors demanding they fulfill their “constitutional duty to give President Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.”

Other groups, such as People for the American Way, are planning to launch ads and publish research memos.

The messaging has focused on Grassley, whose committee controls the nomination process, as well as politically vulnerable GOP senators from states including New Hampshire, Wisconsin and Illinois.

Even leaving aside the circumstances that created this vacancy, it was inevitable that the next Supreme Court appointment would become a massive political battle given the stakes involved. Unlike President Obama’s previous two appointments, in which a basically liberal Justice was retiring and being replaced by a basically liberal appointee, thereby having no real impact on the balance of the Court. This was not going to be the case going forward, though. Heading into the 2016 election, it was mentioned several times that four of the current members of the Court were 75 years of age or older, including two who would be over 80 by the time the next President takes office. Three of those four members — Scalia, Kennedy, and Ginsburg — were Justices who are crucial to the balance or future direction of the Court. No matter when a battle over filling a vacancy created by the death or retirement of any of these four Justices occurred it was bound to be a political battle unlike anything we’ve seen. Indeed, given the fact that the Internet and social media didn’t exist at the time, and that cable news was in its infancy, the battle is likely to make the Bork and Thomas hearings seem like pleasant Sunday afternoon strolls in the park. The fact that this is all occurring during the course of an election year merely guarantees that the volume on the political battle will be enhanced by heretofore unseen orders of magnitude. Call it the inevitable side effect of the polarization of American politics, blame it all on Republicans, do whatever you wish. It is, in the end, the inevitable outcome of the extreme polarization of American politics that we’ve seen since the Clinton Presidency, and that’s a phenomenon that’s only likely to get worse, not better.

As things stand right now, I would expect that Republicans will end up being able to stick together enough to block whatever nominee President Obama throws at that them, regardless of what kind of public relations campaign the White House puts up in front of them. For one thing, as I’ve noted before, notwithstanding whatever the polls may say regarding public opinion on the matter the Senate GOP will still have a greater incentive to adhere to the “No Hearings, No Votes” position than to back down. This is largely because of the fact that, regardless of what the polls say regarding Americans as a whole, those same polls show that Republican voters strongly oppose the idea of going forward with the nomination and would punish Senate Republicans who went back on their pledge. Senate Republicans are betting that they are more likely to face retribution from Republican voters if they back down than they are to face retribution for sticking to their current position from voters as a whole. In no small part, this is because, in the end, the fate of the Supreme Court is likely to be a low-priority issue for most voters compared to issues such as the economy. In addition to the incentives facing Senate Republicans, another reason we’re unlikely to see the GOP back down is because it’s relatively easy for them to adhere to the pledge and almost impossible for Democrats to do anything about it. Majority Leaders McConnell controls the Senate calendar, and Senator Grassley controls the calendar of the Judiciary Committee. Without GOP defections that are unlikely to occur, the Democratic minority is essentially powerless to force action on the nomination. Given that, expect a long drawn out battle but little movement from either side, and most likely a Supreme Court that remains one seat short for at least a year.

 

FILED UNDER: Campaign 2016, Congress, Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Mu says:

    Of course, that will all go away tonight, after Trump locks up the nomination and Hilary announces she’ll nominate Obama to the next vacancy.

  2. C. Clavin says:

    Grassley is taking a lot of heat back home, both from a primary challenger and editorials.
    But at the end of the day allegiance to their own power is more fundamental to these people than a functioning court, or even the basic structure of our Government.
    And there is zero reason to believe they will ever confirm a President Clinton nominee.
    Republicans, and only Republicans, are threatening our very form of Government, from the halls of Congress to their authoritarian presidential candidates.
    Fwck the polling…what is the right thing to do?
    Scalia did his damnedest to make America less free, less tolerant, and less fair. Republicans want much more of the above. And they are willing to burn down the house to get it.

  3. Tillman says:

    The group acknowledged that targeting someone who hasn’t yet been nominated is unusual.

    The word “unprecedented” is starting to lose meaning.

  4. An Interested Party says:

    Let Republicans play this game…it will only make it easier for a Democratic majority in the next Senate to get rid of the filibuster and vote for any candidate that Obama/Clinton would like…and then Republicans can whine about how they, once again, have been victimized…

  5. al-Ameda says:

    Well, I’m glad to hear the rumors that Democrats might actually grow a spine and engage Republicans in the fight.

    To be sure, I honestly believe that the best Democrats can hope for is just getting those greaseballs (Grassley and McConnell) to hold a hearing and get Republicans on the record. A sham “no” vote is a certaintly, but they’d have to explain why they voted “no” and that alone is worth it for campaign purposes.

  6. Peacewood says:

    Not to quibble with the art of the eyeball-grabbing headline, Doug, but how is a battle where nothing much of anything is going to get resolved a “nuclear” one?

  7. gVOR08 says:

    If the president wants to break with decades of precedent by pushing through a nominee in an election year

    Not even started yet, and they’re lying.

  8. OzarkHillbilly says:

    @al-Ameda:

    A sham “no” vote is a certaintly, but they’d have to explain why they voted “no” and that alone is worth it for campaign purposes.

    Especially if it should be someone they voted almost unanimously for previously.

  9. OzarkHillbilly says:

    @Peacewood: By utterly destroying the accepted norms of governing.

  10. Tillman says:

    @Peacewood: It’ll leave decades of political fallout in its wake.

  11. Jack says:

    All the Republicans have to do is agree to begin hearings on 3 Nov 16.

  12. Slugger says:

    Here is my prediction:
    The Senate refuses to consider any nominee. Eventually, whoever becomes Prez refuses to nominate anyone. In about fifteen years, the last Justice dies. Thereafter, we have no Supreme Court.
    At some point, the American people must decide that the political parties do not serve the interests of the country. Can we evolve to a nonpartisan form of governance, or do we opt for a “strong man” system?

  13. al-Ameda says:

    @Jack:

    All the Republicans have to do is agree to begin hearings on 3 Nov 16.

    Hillary won’t be inaugurated until January 20th 2017 or so.

  14. C. Clavin says:

    @Slugger:
    So you are saying Trump is ahead of his time????

  15. Jack says:

    @al-Ameda: You mean she won’t be a defendant until January 20th, 2017 or so. Regardless, it lets the next president decide while also acquiescing to President Stompy Feet.

  16. An Interested Party says:

    You mean she won’t be a defendant until January 20th, 2017 or so.

    Awwww….the dream of some people is that she will be indicted…suck’s for them that not only will that not happen, but she’ll probably be elected our next president…hey, maybe you could go to D.C. and make a citizen’s arrest…

    President Stompy Feet

    Oh my, this is how low we’ve sunk, that a president trying to carry out his constitutional duties is criticized for it…can’t wait to see how you will refer to President Hillary Clinton…

  17. Raoul says:

    It is true that that a Democratic president is nominating a judge to replace a Republican judge; but ever since when are seats assigned by political parties? Let’s recall that a Democratic Senate approved a Republican selection whose qualification were controversial to replace a Democratic judge not that long ago (Thomas and Marshall). How is the current action not seen as the equivalent of FDR’S court packing scheme?

  18. C. Clavin says:

    @Jack:
    Really? A defendant? You and fools just like you have wasted decades investigating the Clintons and have wasted millions of taxpayers dollars…and to date you have found bubkis. But keep the dream alive, bubba.
    It occurs to me that if she was as crooked as you claim she is…you and your foolish friends must be amazingly stupid fwckers for not being able to find anything.
    Just sayin’.

  19. C. Clavin says:

    @Jack:

    President Stompy Feet.

    WTF???

  20. Lenoxus says:

    @gVOR08: Strictly speaking, “decades” could be correct. Was anyone nominated in a presidential election year since 1996, the minimun threshold for “decades” plural?

    (Sure, Reagan did it, but who in the GOP cares about following his lead? They hate the man.)

  21. gVOR08 says:

    @C. Clavin: You don’t understand. Conservatives just “know” stuff. As Dr. K put it, they have a nontraditional relationship with evidence.

  22. Jack says:

    @An Interested Party:

    but she’ll probably be elected our next president…

    President of the Pocatello Women’s Correctional Center.

    can’t wait to see how you will refer to President Hillary Clinton

    Prisoner number HRC2016

  23. gVOR08 says:

    @Lenoxus: I believe this has been beaten to death on OTB, but here’s a summary . Many Justices have been confirmed within the election calendar year, including death within 12 months of the election. (The exception is due to one Sherman Minton who announced his retirement in Sept 1956. With the Senate adjourned, Eisenhower made a recess appt of William Brennan, subsequently confirmed.) What we have is a tradition going back to 1940 of Justices not dying or resigning in the election calendar year.

  24. James Pearce says:

    Once again, it will be up to liberals to attend to the basic functions of our Republic.

  25. Jeremy R says:

    @C. Clavin:

    And there is zero reason to believe they will ever confirm a President Clinton nominee.

    Many seem to have forgotten that when Obama had three vacancies to fill on the DC Court of Appeals, besides their typical delay and obstruction tactics, the GOP floated a kind of reverse court packing. To keep a Republican appointee majority on that court, Sen. Grassley, and many of his fellow Republicans, backed legislative efforts to strip the court of those three empty seats.

    If, politically, they feel comfortable obstructing filling a SCOTUS vacancy for a year, for no other reason than to maintain RW power on that court, it’s not at all obvious to me that the calculus would change if they lose the election. Now that they’ve demonstrated any SCOTUS nomination norms no longer exist, why would their base ever accept a Clinton nominee, particularly after a contentious election battle where the vacancy was used as turnout driving campaign fodder.

  26. al-Ameda says:

    @Jack:

    @al-Ameda: You mean she won’t be a defendant until January 20th, 2017 or so. Regardless, it lets the next president decide while also acquiescing to President Stompy Feet.

    (1) 8 or 9 investigations thus far and … nothing.
    As long as we’re indulging Republican fantasies: Will Hillary be a defendant along with Condoleeza Rice and Colin Powell?

    (2) Do you really think that Republicans will refuse to hold hearings on nominations to the Supreme Court during the full 8 years of Hillary Clinton’s presidency?

  27. KM says:

    @Jeremy R:

    why would their base ever accept a Clinton nominee

    Exactly.

    The argument right now is the duly elected. sitting president has no right to do their clearly-spelled out, Constitutionally-obligated duty because { Reason X } but psst its really because they are a Democrat. Is it really that hard a stretch for them to conceive that the base insisting on unreasonable behavior because the new president will also be a Democrat? For the base, the actual objectionable part will remain constant so there will be no logical reason for them to support “giving in”. The BS line of let the people choose since its an election year will suddenly become null and void if the people chose Democrat and will become keep the seat conservative to maintain “balance”.

    The goalpost will keep a-wandering because the real problem can’t be solved: Republican won’t accept that to the victor go the spoils and for the next year, Obama’s still the victor.

  28. Mikey says:

    @KM:

    The argument right now is the duly elected. sitting president has no right to do their clearly-spelled out, Constitutionally-obligated duty because { Reason X } but psst its really because they are a Democrat.

    And because a black President only gets 3/5 of a term.

  29. C. Clavin says:

    @gVOR08:

    Conservatives just “know” stuff.

    Yup…like Trump himself says;

    All I know is what’s on the internet

    And that’s just one more example of why he is not qualified to hold the office…yet Republicans are falling all over themselves to elect the clown.

  30. KM says:

    @KM:

    Whoops! Got ahead of myself – Doug already went there in the post:

    in which a basically liberal Justice was retiring and being replaced by a basically liberal appointee, thereby having no real impact on the balance of the Court.

    There was no difference in those situations then this one. The potential for impact was exactly the same. A justice stepped down/left/died and was thus replaced by the President, who will more then likely appoint based on their ideology and politics. Those weren’t liberal seats, the butts occupying them happened to be. Now it’s time to appoint another and *gasp* the butt’s conservative!!! So what? The chair’s not, the President’s not so why in the hell is everyone acting like this situation needs to be handled differently then before…. other then obvious personal bias?

    The boss hires as he sees fit. If the applicant can make it past the interviews, HR and the gamut of hiring.. job’s theirs. Don’t like it? Then make sure your guy’s the boss!

  31. Ben says:

    Regardless of which side of the aisle you sit on, it’s extremely vile to smear a public defender for the hideous things their clients did. Being a public defender is one of the hardest and most essential jobs to our liberty and due process. Even the guilty have rights. Zealously representing their client to the limits of the law and ethics is their damned job.

    Our current Supreme Court doesn’t have a single justice on it who has any criminal defense experience, who knows what it’s like to stand up and defend someone with their damned life and liberty at stake. There have been many cases regarding the 4th, 5th and 6th amendments where it was blatantly obvious that no one up on that dais had any idea what it was like over at the other table, because almost all of them only had experience as prosecutors.

    Whether you like Kelly or not, that is a disgusting smear and people should be excoriated for it.

  32. Mikey says:

    @KM: Indeed. There’s all this talk about some mythical thing called “balance,” as if it’s ordained from On High that there must be four “liberals,” four “conservatives,” and one apparent pendulum.

    Well, that’s bullshit.

    If the people elect a President of liberal or conservative bent, they do so knowing that President could have the opportunity to appoint one, or more, members of the High Court. They know–and for many, they desire–the President to appoint members in line with his (or, perhaps after this November, her) political views. The people don’t want “balance,” they want a High Court that reflects the majority’s desire as reflected in their election of a liberal or conservative President.

    The Republicans, in their crusade to thwart the President and hamstring the Supreme Court, are spitting in the faces of the majority of American voters who elected President Obama.

  33. Tyrell says:

    The president needs to make them a deal they can’t refuse. Nominate a person who is so widely respected, wildly popular, well liked by all, and who has an impeccable record. That way everyone wins. And there would not be all this fussing and carrying on.

  34. stonetools says:

    Oh well, it’s good that Doug seems to be going beyond “both sides do it” to admitting that what the Republicans are doing is something new and unprecedented.

    Regardless of which side of the aisle you sit on, it’s extremely vile to smear a public defender for the hideous things their clients did. Being a public defender is one of the hardest and most essential jobs to our liberty and due process. Even the guilty have rights. Zealously representing their client to the limits of the law and ethics is their damned job.

    Completely agree but this argument is only likely to work for liberals. Most conservatives don’t really think the Sixth Amendment belongs in the Constitution, so smearing the public defender for what their client did is fair play for them. The killer argument that will work for conservatives and independents is that the Republicans all knew about this when she came up for confirmation to the federal appellate court in 2013, yet they unanimously voted to confirm her-with Senator Charles Grassley leading the charge. That’s an argument the Republican Senators can’t answer. How the heck is Grassley going to refuse to even give Kelly a hearing when he cheered her confirmation to the appellate bench three years ago? I guess we could find out the answer to that question in a couple of days.
    Another pressure point for Obama to exploit: after tonight, Trump will likely. be on a path to confirmation. Obama can troll the Senate Republicans by saying that they are working hard to ensure that Trump gets to pick a Supreme Court Justice. It will be fun seeing the Republican Senators try to justify that.

  35. steve s says:

    One of the reasons Obama’s been pretty sunny and easygoing the last 6 mos or so is probably that he’s solidifying the fact that over his lifetime, Republican presidents have been pretty shitty, and corrupt, and spendthrift, and Democratic presidents have been solid.

  36. KM says:

    @Mikey :
    I can understand the quest for balance under the guise of impartiality. In truth, there should be no partisanship – we should not know how a judge will jump ahead of time. Since that’s never going to be the case, “balance” is therefore held up as an suitable replacement for those seeking a chance at justice. Personally, i’d be horrified as a liberal seeking my day in court in a heavily conservative SC and would not feel confident my case was truly heard; I can only imagine the same dread on the other side of the aisle so I can understand the push towards an equilibrium of sorts as the ideal state of being.

    However, “balance” =/= “status quo” and that’s exactly what conservatives are trying for. The current rightward tilt is *not* the default state as many are implicitly arguing. It could easily be a pro-liberal 5-4 or 6-3 split with Kennedy and the newbie as occasional wild cards and still satisfy the “balance”. Tilting slightly left or right is normal and expected; what’s *not* normal is an artificial harmony designed to keep a status quo favorable to one ideology only. There’s really no way to argue for it other then blatant partisanship; if you are OK with the rightward tilt because a president at one point created that split, you should be OK with the leftward tilt on those same merits. In which case, let Obama do his thing and take the moderate/liberal with good grace knowing the tide will change again.

  37. gVOR08 says:

    @Tyrell:

    Nominate a person who is so widely respected, wildly popular, well liked by all, and who has an impeccable record.

    Of course that’s what Obama will do. All of the leaked candidates meet that description. What gives you the weird idea that the GOPs would confirm such a person rather than find some cheese ball excuse for rejection?

  38. Rafer Janders says:

    @stonetools:

    That’s an argument the Republican Senators can’t answer.

    Oh, sure they can answer it, with their standard answer:

    “Because shut up, that’s why.”

  39. Andre Kenji says:

    @Lenoxus: No, basically because Justices don´t want to retire during elections, precisely because they don´t want the choice of their successor to become a electoral issue. The last one to retire during an election was Earl Warren, and only because he did not want Richard Nixon to choose his successor.

    And very few justices die while in the bench. Scalia was the sixth to do so after World War II.

  40. C. Clavin says:

    @Tyrell:

    And there would not be all this fussing and carrying on.

    Have ou not been paying attention to your Republican party for the last seven years?
    They don’t vote for things they actually support.
    So they aren’t about to confirm a nominee they support.
    Buy a dog, name it Clue…then you will have one.

  41. Tyrell says:

    @C. Clavin: “there was this guy who had two dogs named Pete and Repeat. There was this guy who had two dogs named Pete and Repeat. “

  42. Just 'nutha ig'rant cracker says:

    @Raoul: Because IOKIYAR?

  43. al-Ameda says:

    @Tyrell:

    The president needs to make them a deal they can’t refuse. Nominate a person who is so widely respected, wildly popular, well liked by all, and who has an impeccable record. That way everyone wins. And there would not be all this fussing and carrying on.

    Seriously, that’s not what Republicans want. End of story.

  44. Just 'nutha ig'rant cracker says:

    @Jack: Sorry Jack but PWCC is not a federal facility, so Hillary can’t be jailed there for what you’d like to convict her of in absentia testemonium.

    https://www.idoc.idaho.gov/content/locations/prisons/pocatello_womens_correctional_center

    Still, thanks for playing. Feel free to take your lovely parting gift–a complementary box of Rice-a-Roni (the San Francisco treat, saute and simmer to taste perfection).

  45. An Interested Party says:

    How the heck is Grassley going to refuse to even give Kelly a hearing when he cheered her confirmation to the appellate bench three years ago?

    Because Republicans are completely shameless and incredibly desperate…they know that if they even have hearings for an Obama appointee they’ll be excoriated by the base, plus once an appointee has hearings and is well known, it’ll be even harder for them to vote against that person, especially if the nominee is perceived as being moderate…they need to get over the idea that conservatives are entitled to a majority on the court, because they are about to lose that…

  46. Just 'nutha ig'rant cracker says:

    @Tyrell: What part of “no hearings, no vote, no way, no how” did you not understand? I’d like it to be as you suggested, too, but that not what the obstructionists GOP Senate caucus promised. (And I think you know that!)

  47. Pch101 says:

    At this point, the GOP should change its name to the Tantrum Party A screaming baby would be an ideal mascot.

  48. Flat Earth Luddite says:

    Ah, yes, the ‘Publican Party… bringing truth & justice to righteous ‘Mercans since before Tail Gunner Joe… keep holding your breath, boys. Not a fan of right-of-center Hillary, but she beats the heck out of the clown car rolling downhill on the right.

  49. ddennis says:

    @Jack:

    You’re a child.

  50. anjin-san says:

    @ddennis:

    You’re a child.

    And a rather dull one at that…