Rules Matter Yet Again: SCOTUS Strategizing
Dare I say: hate the game, not the players?
It is sometime useful to remind ourselves that politics is a game wherein the players assess their various moves within the bounds of the established rules so as to score whatever points the players think possible. The pertinent rules and parameters are as follows:
1) For a Supreme Court Justice to take their seat, they must be confirmed by the Senate.
2) There is no official clock under which the Senate must function.
3) The ideological balance of the Court is currently in play (so the points that can be scored are high).
4) The appointment is life with good behavior, so the stakes are potentially a seat occupied for two to three decades.
5) Filling the current vacancy will alter the current ideological balance of the Court for decades to come (potentially).
As such, and regardless of one’s preferences (or what history and tradition may dictate), it should be no surprise that the Republicans in the Senate will seek to run out the clock on the current occupant of the White House in regards to giving him the chance at a third appointee to the Court.
Is it fair to note that conservatives allegedly favor history and tradition? Sure it is. Is it likewise fair to note that Republicans like to speak in grand terms about fealty to the constitution? Of course. Do power calculations and the long-term balance of the Supreme Court trump those things? What do you think?
I must confess that on one level I find it problematic to claim that the next president will have more democratic legitimacy than does the person currently occupying the office. And, ultimately, that is what Senator McConnell is asserting when he says: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” After all, the current president came to office (twice) via the voice of the American people.
Having said that, there is something to be said about making the nomination into a campaign issue insofar as it will allow voters a significant say in this particular nomination (not just the chance of influencing a nomination that comes with every election). The voters will have, more than usual, direct influence on the Court should the Republicans succeed in keeping the seat open until 2017. That isn’t necessarily bad from a democratic theory point of view in the context of divided government.
Regardless, the power calculation is clear: if the Republicans allow a confirmation now, they will have lost access to the vacancy but there is a chance that the next president will be a Republican, and so they are willing to roll the dice.
Still, I think it is worth noting that it is a roll of the dice insofar as the next president could not only be a Democrat (indeed, if one is objective about it, the odds are better that it will be a Democrat than a Republican—just go look at the electoral math) but, further, there is the real chance the Republicans will have less Senate seats after November (and hence, less influence over the vacancy). As such, the safer play would be to try and leverage the current situation for a more moderate Justice in the here and now as opposed to running the risk of having to accept a more liberal one in early 2017.
To wit, the following scenario is very real possibility: a newly elected President Clinton, with a more Democratic Senate, can assert that the people have spoken (a la Senator McConnell) and therefore feel rather unconstrained in her nomination of the next Associate Justice, which the Republicans will have a harder time blocking.
And, speaking of politics, the smart play for President Obama is to nominate someone whose rejection will help motivate pro-Democratic voter turnout. As such, I would expect a minority appointee and, if they are smart, someone who is not overtly ideological or in some way politically objectionable. This way the Democrats can motivate their base, appear to be the more reasonable party (they would be, after all, simply doing what the constitution dictates), and also be able to promote the narrative that the Republicans are obstructionists not serious about governing (and anti-minority to boot).
I will say, I still question the strategic wisdom of Senator McConnell coming out and saying “this vacancy should not be filled until we have a new President”—it strikes me that it would have been smarter to at least appear willing to follow the constitutional process and reject nominees by stating that they are “too liberal” or whatever argument the Senate Republicans would like to make. To simply state, within hours of Scalia’s death no less, that we would be going likely at least a year before the Court was at full strength seems both unnecessary and a move that limits Republican maneuvering room. If Senators Cruz or Rubio had made such a statement, that would make perfect sense (indeed, McConnell should have let Cruz be Mr. Obstruction).
The only argument that I have seen for why McConnell may have made this choice comes from Sarah Binder at The Monkey Cage:
In that sense, despite the strong polarization of the parties in recent years, there’s an outside chance that a supermajority could be cobbled to confirm a moderate Obama appointee. And that is the procedural genius of the majority leader’s rejection of the Senate’s constitutional duty to provide advice (if not consent) to fill Scalia’s seat. If there’s no vote, cross-pressured GOP senators are saved from a tough public vote and McConnell preserves the vacancy until after the electoral dust settles.
Of course, she also notes: “If McConnell’s strategy succeeds, he’ll have created quite the new institutional tradition.” Indeed. In fact, this action will further reinforce the politicization of the process that has been in place since Bork (and Democrats will be looking for a chance to retaliate in some way, even if it takes years).
On one level, I very much would prefer that a sitting president at least be allowed a vote on their nominee. Indeed, my philosophical predilection is that president’s ought to have reasonable, qualified nominees confirmed (or, at least, that they have the chance to get a nominee seated when a vacancy occurs even if it requires negotiation or multiple nominees to achieve that outcome). Having said that, I cannot ignore that the rules of the game do not stop Senate Republicans from running out the clock, so fully expect that outcome. In short, it is not unreasonable for a Republican majority Senate to seek to extract some level of concession from a Democratic President on a Supreme Court nomination given the constitutional parameters in play. However, that does not appear to be what is going to happen. We will see if the Republicans gamble pays off (I have my doubts).
A concluding point: maybe some day we will wise up and create a specific terms (and age limits) for SCOTUS (like the rest of the world). When the stakes are so high (i.e., the chance to appoint a 40-something for a lifetime appointment and therefore to influence outcomes for a very, very long time) it is not surprising that behaviors become extreme vis-à-vis filing the slot. A twenty year term (with a retirement age of 75) keeps the stake high (but nowhere near as high) and would change behaviors.