The ‘West Wing’ Solution to the Scalia Vacancy

What would Jed Bartlet do?

west-wing-supremes

To weigh in on the controversy surrounding the vacancy on our highest court by the sad passing of Justice Antonin Scalia, my going-in positions are as follows.

The President is entitled to nominate a candidate to fill such vacancies right up until his term ends at noon on 20 January 2017.  That presumption would be suspended for a president under impeachment. Further, as a practical matter, presidents 90 days or so from leaving office would likely have a very difficult time getting a vote, especially if the opposition party controls the Senate, as is the case now.

Senators have every right to consider the ideology of the person nominated to the Supreme Court. As then-Senator Barack Obama argued regarding the confirmation of Samuel Alito to the Court back in January 2006,

There are some who believe that the President, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether the Justice is intellectually capable and an all-around good guy; that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be confirmed. I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe it calls for meaningful advice and consent and that includes an examination of a judge’s philosophy, ideology, and record.

See the Congressional Record for the longer version of his argument. While I disagree with much of his rationale for opposing Alito, it was cogently argued and well within the parameters of his rights as a Senator.

Relatedly, Senators have every right to consider the “swing” effect of the new nominee. Given that Justice Scalia was a particularly conservative vote on the Court, it’s perfectly reasonable for Senators—particularly Republican Senators—to have a presumption over replacing him with a particularly liberal vote. And, yes, I would argue the same thing if a hypothetical President Ted Cruz were in a position to nominate a replacement for, say, Justice Ruth Bader Ginsburg.

My preference, then, would be for Obama to nominate a relative centrist  rather than a progressive Scalia-equivalent and for the Senate to confirm said nominee expeditiously and unanimously.

That is, of course, highly unlikely in both instances. Obama has every reason to want to nominate another Ginsburg, for a variety of reasons. And Senate Republicans, who have been obstreperous for some time now, are even less likely to be in a charitable mood given the anti-Establishment fervor being demonstrated by the party base during the ongoing race for the GOP nomination.

One possible and not entirely far-fetched win-win solution to this problem was suggested in a 2004 episode of the television series “The West Wing.” Essentially, President Bartlett found two brilliant jurists, one a strong liberal and the other a strong conservative, and nominated them both as a package deal.

Given her age, health issues, and famous friendship with Scalia, it’s quite plausible to me that Ginsburg would be willing to step down in favor of a much younger version of herself and go along with a younger, if perhaps less pugnacious, Scalia-type. This would allow Ginsburg to go out on a high note, not only ensuring a worthy successor to her legacy replaces her (indeed, she could be offered a strong voice in recommending said replacement) but also making her something of a hero for averting a constitutional crisis. Obama would get to be not only pragmatic but put another liberal on the Court for decades. Senate Republicans would not only get a way out of this mess but get a hand in selecting Scalia’s successor.  All without upending the ideological balance of the Court.

Additionally, it would be a fitting close to Obama’s presidency. Many fans of “The West Wing” noted the uncanny resemblance between the 2008 presidential race and the fictional one that was the central plotline of the show’s final season.

FILED UNDER: *FEATURED, Law and the Courts, Popular Culture, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. al-Ameda says:

    My preference, then, would be for Obama to nominate a relative centrist rather than a progressive Scalia-equivalent and for the Senate to confirm said nominee expeditiously and unanimously.

    That is, of course, highly unlikely in both instances. Obama has every reason to want to nominate another Ginsburg, for a variety of reasons. And Senate Republicans, who have been obstreperous for some time now, are even less likely to be in a charitable mood given the anti-Establishment fervor being demonstrated by the party base during the ongoing race for the GOP nomination.

    A couple of points:
    (1) Obama is extremely likely to appoint a ‘relative centrist.’ That’s why we’re hearing about Sri Srinivasan, Patricia Millet, Merrick Garland, and Jane Kelly.
    (2) The GOP will consider none of those people to be “relative centrists’.

  2. SKI says:

    My preference, then, would be for Obama to nominate a relative centrist rather than a progressive Scalia-equivalent and for the Senate to confirm said nominee expeditiously and unanimously.

    You are likely to get your wish as the early favorite is Sri Srinivasan – as moderate a nominee as could realistically be found. Served under both W. and Obama. Clerked for O’Connor. Business litigator (with JD/MBA from Stamford) who argued on behalf of Enron’s Jeff Skilling (and won) at SCOTUS. Confirmed 97-0 in 2013.

  3. Mu says:

    When Hillary gets Barack Obama on the court after the election the Republicans are going to cry for a very long time about having missed out on one of the centrists.

  4. CSK says:

    @al-Ameda:

    Yep. No Obama appointee will be acceptable to the “base.”

  5. James Joyner says:

    @al-Ameda: @SKI: Srinavasan does indeed appear to be a plausible choice. Whether he’s salable as a “moderate,” much less as an acceptable replacement for Scalia, is another matter. I just don’t know.

    @Mu: I don’t know that Clinton has any particular fealty to Obama or that he’d want the job. And he’s be 55 by the time he leaves office–arguably a bit old for a lifetime appointment.

  6. Steve V says:

    The GOP will paint anyone less conservative than Janice Rogers Brown as a radical leftist. Membership in the Federalist Society is, I would imagine, a bare-minimum requirement for them.

  7. Jenos Idanian says:

    Instapundit had an interesting notion. He suggested that the Senate should put together a list of candidates they find acceptable, and forward it to the White House. (This would fall under the “advise and consent” framework.) Should Obama pick one of those, they would essentially be fast-tracked to approval. Or Obama could dismiss all the suggestions and nominate his own choice, with the standard process.

    Since the Senate is not only entitled, but obligated to express its approval, Obama should be prepared to send them a nominee that they will find acceptable. Instead, he’s being told that he should find someone who would be a “stealth liberal” that the Senate can’t reject without looking like hypocrites. (In the eyes of the left, at least.)

    What a great cudgel that is. “Vote for this guy, or a bunch of people who hate you already will call you names that you can cheerfully ignore as more partisan BS. And even if you do vote for this guy, they’ll still call you the same names, just for some other trumped-up reason.”

  8. Moosebreath says:

    @Jenos Idanian:

    “He suggested that the Senate should put together a list of candidates they find acceptable, and forward it to the White House. (This would fall under the “advise and consent” framework.) Should Obama pick one of those, they would essentially be fast-tracked to approval. Or Obama could dismiss all the suggestions and nominate his own choice, with the standard process.”

    If the Senate would suggest actual moderates, this might be doable (and is similar to what happened when Ginsburg was nominated, as Clinton took a recommendation from Orren Hatch to nominate her).

    However, the closest I have seen to this is Lindsey Graham’s suggestion to nominate Hatch himself for this seat. Since Hatch is turning 82 next month, and is not exactly left-of-center, that would be a non-starter.

  9. Jenos Idanian says:

    @Moosebreath: The key is that the Senate’s list would be suggestions, with Obama under no obligation to do anything with the list. Simple courtesy would require him to at least look at it (or, more realistically, have his staff look at them), but it would be a nice gesture from both sides.

    Which is why, of course, it won’t go anywhere.

  10. Moosebreath says:

    @Jenos Idanian:

    Exactly what in my response saying that your suggestion was doable led you to respond in that manner? Seriously, if that is how you respond to someone being open to your suggestion, it is a good way to ensure that it happens less and less frequently.

  11. James Pearce says:

    @Jenos Idanian:

    Should Obama pick one of those, they would essentially be fast-tracked to approval. Or Obama could dismiss all the suggestions and nominate his own choice, with the standard process.

    Since the Senate is not only entitled, but obligated to express its approval, Obama should be prepared to send them a nominee that they will find acceptable.

    Congress and the president need to work together on this. Checks and balances.

    Where in this plan does the president (any president, not just Obama) get their say?

  12. Jenos Idanian says:

    @Moosebreath: It certainly wasn’t my intent to offer offense. As evidence, I cite my lengthy history of being deliberately offensive and proudly owning it; it wasn’t intended in this case.

    I was attempting to echo what you said, and wistfully agree with you — Professor Reynolds put forth a good idea, but it would be a good idea for the future.

    He has another phrase he uses a lot when discussing big government programs where simpler solutions exist: “insufficient opportunities for graft.” To adapt it here, it offers insufficient opportunities for scoring political points and crass opportunism.

    Yes, from both sides.

  13. Moosebreath says:

    @Jenos Idanian:

    ” It certainly wasn’t my intent to offer offense. As evidence, I cite my lengthy history of being deliberately offensive and proudly owning it; it wasn’t intended in this case.”

    Thanks for clearing that up.

  14. Pch101 says:

    The West Wing was fun, but I seriously doubt that the president could impose his package deal on the Senate. The senators would be free to vote for one and not the other.

    I would think that the only way to hold it together would be if both nominees pledged to make it an all-or-nothing arrangement. (They obviously can’t be forced to take the job, so the winner would have to have integrity to decline if his/her counterpart was rejected.)

  15. James Joyner says:

    @Pch101: Certainly true. You’d essentially have to have the President, the Senate Majority Leader, and the Chairman and Ranking Member of the Senate Judiciary Committee publicly agreeing to the deal. I suppose treachery would still be possible but it would be so unseemly in that situation as to make it unlikely.

  16. Tillman says:

    I love how every solution to this involves keeping the court as status quo antemortem as possible.

  17. James Joyner says:

    @Tillman: Well, sure. The Constitution provides that POTUS appoints Justices with the advice and consent of the Senate. Given that the people have, in their infinite wisdom, elected a Democratic president with a majority Republican Senate, it’s going to be very difficult to replace a very conservative Justice late in the president’s final term. Compromise along ideological grounds is a natural solution for such an impasse.

  18. PJ says:

    Given her age, health issues, and famous friendship with Scalia, it’s quite plausible to me that Ginsburg would be willing to step down in favor of a much younger version of herself and go along with a younger, if perhaps less pugnacious, Scalia-type. This would allow Ginsburg to go out on a high note, not only ensuring a worthy successor to her legacy replaces her (indeed, she could be offered a strong voice in recommending said replacement) but also making her something of a hero for averting a constitutional crisis. Obama would get to be not only pragmatic but put another liberal on the Court for decades. Senate Republicans would not only get a way out of this mess but get a hand in selecting Scalia’s successor. All without upending the ideological balance of the Court.

    This idea is just horse manure.

    If Republicans want to pick Scalia’s successor then they should invent a time machine, travel back to 2012 and win the Presidency. That’s how you get to pick Supreme Court nominees.

    The ideological balance shouldn’t be upended? It should be.

  19. OzarkHillbilly says:

    You want sparkles with your Magic Pony, James?

  20. OzarkHillbilly says:

    @James Joyner:

    Compromise along ideological grounds is a natural solution for such an impasse.

    Seeing as Dems could well win the Presidency (maybe even take the Senate?) (HAHAHAHAHA… I crack me up) I fail to see the compromise in giving Republicans what they want.

  21. Pch101 says:

    @PJ:

    One could argue that if Democrats want to unilaterally pick Scalia’s successor then they should invent a time machine, travel back to 2014 and win the Senate.

    Then again, since the GOP members of the Senate want to go on strike for the next year, perhaps we should hire some scabs to vote in their place.

  22. James Joyner says:

    @PJ:

    If Republicans want to pick Scalia’s successor then they should invent a time machine, travel back to 2012 and win the Presidency. That’s how you get to pick Supreme Court nominees.

    The ideological balance shouldn’t be upended? It should be.

    You’re forgetting the other half of the equation: Republicans won control of the Senate through the same election system that gave us a Democratic president. The Senate has every bit as much say in who sits on the Court as the president.

    @OzarkHillbilly:

    I fail to see the compromise in giving Republicans what they want.

    The compromise is in also getting a 45-50ish version of Ginsburg along with a Scalia-type. Even though I agree Hillary Clinton is the most likely successor to Obama, there’s no reason at all to think that she’ll have the votes in the Senate to get someone like that through.

  23. KM says:

    All without upending the ideological balance of the Court.

    Ummmm… no. That’s not how the game has ever been played and that’s not how we’re starting now. It’s not “Scalia’s seat”, it’s not a conservative seat. It’s a spot available to anyone who makes it through the process. The ideology of the nominator will influence who is put forth and the ideology of the Senate will dictate how far they can get in the hearings.

    It’s absurd to think the Court is unchanging and should not be upset. Everyone will root for their own side but it’s disturbing how many people are talking like this chair can only be filled by a Conservatives’ butt because that’s who sat in it last. It will belong to whomever the President (in this case a Liberal) will be able to get through. The chances of a Conservative Judge are vanishingly small; the best they can hope for is a moderate swing and a shot at the Presidency down the line. Votes matter.

  24. Moosebreath says:

    @James Joyner:

    “The ideological balance shouldn’t be upended? It should be.

    You’re forgetting the other half of the equation: Republicans won control of the Senate through the same election system that gave us a Democratic president. The Senate has every bit as much say in who sits on the Court as the president.”

    I assume then that you were opposed to Clarence Thomas’s nomination, then. After all, that upset the ideological balance at a time when one party controlled the White House and the other the Senate.

  25. James Pearce says:

    @James Joyner:

    Compromise along ideological grounds is a natural solution for such an impasse.

    Sure, but compromise is no solution at all if the impasse is the whole point.

  26. James Joyner says:

    @KM:

    It’s not “Scalia’s seat”, it’s not a conservative seat. It’s a spot available to anyone who makes it through the process. . . . It will belong to whomever the President (in this case a Liberal) will be able to get through.

    Right. But the whole problem is how to get an Obama appointee to fill this particular vacancy through a process that requires getting Senate Republicans on board.

    The chances of a Conservative Judge are vanishingly small; the best they can hope for is a moderate swing and a shot at the Presidency down the line. Votes matter.

    Right. But the votes that matter are those of Senate Republicans. The West Wing Solution makes both liberals and conservatives happy, as it advances their positions equally. The alternative, as I’ve suggested, is for Obama to appoint a moderate and persuade Republicans to vote for him or her. But that’s likely harder, especially given that it’s a replacement for Scalia rather than, say, Ginsburg.

  27. Tillman says:

    @James Joyner: Nothing I disagree with. It’s just amazing to me that hours after Scalia’s death, that Republican Senate’s leadership began pressing for the Democratic president to do nothing just to preserve their forty-year-old lock on the judicial branch. Since 2010, it feels to me like Senate Republicans have done little but undo as many norms as possible in a craven display to preserve what power they can. All while calling themselves (ostensibly if not officially) defenders of tradition.

  28. PJ says:

    @Pch101:

    One could argue that if Democrats want to unilaterally pick Scalia’s successor then they should invent a time machine, travel back to 2014 and win the Senate.

    I never said anything about Democrats unilaterally picking Scalia’s replacement.

    If they controlled both the Presidency and the Senate, his replacement would have be a lot more liberal than if they only controlled the Presidency, and the same thing would be true if a liberal Justice had died instead of Scalia, the replacement would be a lot less liberal if the Senate was controlled by Republicans than if it wasn’t.

    But in neither case would the Justice ever be a conservative.

    Again, not upending the ideological balance of the Court… That’s just horse manure.

  29. OzarkHillbilly says:

    @James Joyner: A return to the previously existing norm is obviously not acceptable to any Dem. If Republicans insist on Genghis Kahn as opposed to any # of centrists, my suggestion is they better run the table come November.

    You gonna vote Trump* or Clinton, James?

    *if you prefer, substitute the even more loathsome Cruz

  30. Andy says:

    Essentially, President Bartlett found two brilliant jurists, one a strong liberal and the other a strong conservative, and nominated them both as a package deal.

    The problem is that the ideologues on both sides aren’t interested in maintaining an ideological balance so this plan would never work.

  31. OzarkHillbilly says:

    @James Joyner:

    The West Wing Solution makes both liberals and conservatives happy, as it advances their positions equally.

    Whatever gave you that idea? Republicans want nothing less than World Domination. Dems will be happy with the much more manageable Total Dominion of the US of A till the End of Days.

  32. PJ says:

    @James Joyner:

    Right. But the votes that matter are those of Senate Republicans. The West Wing Solution makes both liberals and conservatives happy, as it advances their positions equally. The alternative, as I’ve suggested, is for Obama to appoint a moderate and persuade Republicans to vote for him or her. But that’s likely harder, especially given that it’s a replacement for Scalia rather than, say, Ginsburg.

    Currently, the court is most likely to either be tied 4-4 or rule in favor of the liberal wing. Replacing both Scalia and Ginsberg with younger versions of themselves would mean that the court would swing back to a conservative court. So, no it wouldn’t advance their positions equally nor make everyone happy.

    Nor are the Senate and the President equals when it comes to picking Justices.

    A functioning Senate should give its consent to a moderate, but liberal, Justice. But as we all know Republicans haven’t been functioning for quite a while.

  33. OzarkHillbilly says:

    @Andy: The problem is that there is no “Ideological balance” in a 5-4 court, it’s not possible. It was weighted conservative before, Dems would like it to be weighted Liberal now. The best any can hope for out of this is 4-4-swing.

  34. Mikey says:

    @James Joyner:

    Compromise along ideological grounds is a natural solution for such an impasse.

    Given the Republicans are utterly, pigheadedly, completely opposed to anything that even begins to think of the merest chance of possibly, one day, in some nebulous and uncertain future, perhaps sort of resembling compromise…I guess “impasse” it is, then.

  35. Moosebreath says:

    @James Joyner:

    “The West Wing Solution makes both liberals and conservatives happy, as it advances their positions equally.”

    Only for bizarre definitions of “equally” where the Republicans get to keep a status quo they like, and the Democrats get to keep a status quo they don’t like.

  36. I cannot see the West Wing solution being workable. While it is true that we have divided government, I don’t think that translates into maintaining the status quo on the Court, ideologically. Really, the Reps should leverage a moderate out of Obama rather than run the risk of being less well positioned in 2017 to leverage such an outcome.

  37. Pch101 says:

    @Andy:

    The problem is that the ideologues on both sides aren’t interested in maintaining an ideological balance

    We can’t maintain what we haven’t got.

    Also, the West Wing Supreme Court was balanced until the death of the conservative juror, which is why this idea might work within the context of that TV show. Jed Bartlett didn’t have a 5-4 mostly conservative court as we do in the real world.

  38. gVOR08 says:

    I’m failing to see either any motivation for Obama to go along with this plan or any reason he shouldn’t proceed to deal with this in the normal way. If he nominates someone perceived as a widely respected moderate either he gets an acceptable Justice confirmed or the Dems get to run against another example of how crazed the Republicans have become. They’ve gotten so bad that even the supposedly liberal MSM occasionally notice.

    Obama’s way more knowledgeable than I am, and way more devious. He may have a better plan. But it looks to me like McConnell et al have presented him with a situation that’s heads Obama wins, tails Obama wins, and it’s almost automatic.

    The only problem I see is getting the widely respected moderate to agree to going through what’s likely to be an ugly, drawn out process.

  39. Steve V says:

    If a Republican wins the presidency this year, chances are that he will have at least one and probably two Supreme Court nominations during his first term. Both vacancies will be for so-called “liberal” seats, Ginsburg and Breyer. How sympathetic will a GOP president be to maintaining the “ideological balance” of the Court if that happens? Given the possibility of that happening, what should Obama do now?

  40. James Joyner says:

    @Steve V:

    If a Republican wins the presidency this year, chances are that he will have at least one and probably two Supreme Court nominations during his first term. Both vacancies will be for so-called “liberal” seats, Ginsburg and Breyer. How sympathetic will a GOP president be to maintaining the “ideological balance” of the Court if that happens?

    If a Republican wins the presidency, the party would almost certainly keep the Senate. They’d thus have a clear mandate to move the Court to the right. Obama lacks that given divided government.

    @OzarkHillbilly:

    You gonna vote Trump* or Clinton, James?

    *if you prefer, substitute the even more loathsome Cruz

    Right now, the only Republicans remaining in the race I’d definitely vote for are Kasich, Bush, and Rubio. I’d almost certainly vote for Sanders over Trump or Cruz. Clinton makes the choice harder.

  41. Jenos Idanian says:

    I feel someone should bring up that “The West Wing” was the product of a severely drug-addled leftist who used his platform to project his political fantasies, and bore very little resemblance to reality. And I say that as someone who is utterly apathetic about sports, but loved Sorkin’s “Sports Night.” Also, “Studio 60” was pretty good, too.

    It’s a nice fantasy, but the problem is that it was all written by an omniscient and omnipotent who knew how he wanted it to end, and manipulated everything to get to his ending. Reality doesn’t work that way.

  42. James Pearce says:

    @Steven L. Taylor:

    Really, the Reps should leverage a moderate out of Obama rather than run the risk of being less well positioned in 2017 to leverage such an outcome.

    The Reps don’t really want a moderate on the bench, though. They want Scalia 2.0.

    And however they use their leverage, it will not produce their desired results, since it’s likelier that some Reps in the Senate break ranks than it is that Obama is going to nominate a conservative originalist. It puts them in the untenable position of squandering any leverage they try to use.

  43. Rafer Janders says:

    @James Joyner:

    Given that the people have, in their infinite wisdom, elected a Democratic president with a majority Republican Senate

    Aren’t you supposedly a political scientist? You know very well that, due to the small state bias, which currently favors Republicans, the majority of Republican senators represents a smaller proportion of the American public than the minority of Democratic senators. Cumulatively, the Senate’s Democrats received 20 million more votes than the Senate’s Republicans. The electorate for a presidential election is not congruent with the electorate for each individual state’s senatorial election.

  44. PJ says:

    @James Joyner:

    If a Republican wins the presidency, the party would almost certainly keep the Senate. They’d thus have a clear mandate to move the Court to the right. Obama lacks that given divided government.

    But, as already asked by Moosebreath, what about George H.W. Bush replacing Thurgood Marshall with Clarence Thomas? There was no clear mandate for that.

  45. HarvardLaw92 says:

    @James Pearce:

    since it’s likelier that some Reps in the Senate break ranks

    Tillis, R of NC, has already broken ranks.

  46. al-Ameda says:

    @Jenos Idanian:

    I feel someone should bring up that “The West Wing” was the product of a severely drug-addled leftist who used his platform to project his political fantasies, and bore very little resemblance to reality.

    Whenever someone says “drug-addled” I always think of Rush Limbaugh. Funny how that, word association, works.

  47. Pch101 says:

    @al-Ameda:

    Jenos is shocked that a writer included fiction in a work of fiction.

    He’s going to be in for a hell of a disappointment if he realizes that John Galt didn’t exist.

  48. Rafer Janders says:

    Senate Republicans would not only get a way out of this mess but get a hand in selecting Scalia’s successor. All without upending the ideological balance of the Court.

    Why should they get a hand? Why shouldn’t we upend the ideological balance of the Court? Elections have consequences, you know….

  49. Rafer Janders says:

    @Jenos Idanian:

    I feel someone should bring up that “The West Wing” was the product of a severely drug-addled leftist who used his platform to project his political fantasies, and bore very little resemblance to reality.

    Someone should bring up the fact that a fictional drama written by a writer of fiction was a work of fiction and not a documentary? Why?

    But, OK, I’ve brought it up. For extra credit, I’ll also bring up that “The X-Files,” “Lost,” “House,” “Ally McBeal,” “Law & Order,” “Battlestar Galactica,” “Star Trek: Next Generation,” and “The Good Wife” bore or bear little resemblance to reality.

    Um, now what?

  50. Rafer Janders says:

    @Jenos Idanian:

    It’s a nice fantasy, but the problem is that it was all written by an omniscient and omnipotent who knew how he wanted it to end, and manipulated everything to get to his ending. Reality doesn’t work that way.

    My god, it’s almost like the man was an author of fiction! Has someone alerted the authorities???

  51. Grumpy Realist says:

    Wasn’t it Justice Scalia who pulled out the example of Jack Bauer when defending the use of “forcible interrogation”?

    Talking about fiction…..

  52. Pch101 says:

    Jenos has a point. Any show that would have a Republican winning California and a Democrat winning Texas in a presidential election was obviously science fiction.

  53. Davebo says:

    @James Joyner:

    The compromise is in also getting a 45-50ish version of Ginsburg along with a Scalia-type.

    Given the political makeup of the various US courts of appeals I’m fine with a few years of 4/4 decisions leaving the lower court’s ruling to stand.

  54. Davebo says:

    @Rafer Janders: Law and Order??

    Hey! Those stories, all 10,000 of them were “ripped from the headlines”!

    Dom Dom!

  55. Davebo says:

    @HarvardLaw92:

    “I think we fall into the trap if just simply say sight unseen, we fall into the trap of being obstructionists,” Tillis said.

    Hate to break it to you Senator but you fell in that trap in 2008. Some might say you dove into it (you being the GOP..) and proudly announced it.

  56. Tony W says:

    @James Joyner:

    Whether he’s salable as a “moderate,” much less as an acceptable replacement for Scalia, is another matter. I just don’t know.

    Scalia is irrelevant in this discussion, just as Thurgood Marshall was during Thomas’ nomination. It’s Obama’s seat to award.

  57. Firebringer says:

    @Rafer Janders: The electorate for a presidential election is not congruent with the electorate for each individual state’s senatorial election.

    And therein lies the basic problem with an elected Senate. I’m not claiming the election by State legislatures was a piece of cake either, but Senators should not be elected by popular vote. There should have been other solutions considered and implemented for state deadlocks on senate appointments (one among several problems).

  58. An Interested Party says:

    …but Senators should not be elected by popular vote.

    Why? It’s not as if the members of state legislatures are congruent with the electorate for presidential elections either…

  59. Kylopod says:

    @Jenos Idanian:

    I feel someone should bring up that “The West Wing” was the product of a severely drug-addled leftist who used his platform to project his political fantasies, and bore very little resemblance to reality.

    If you’re referring to Aaron Sorkin, it’s worth noting that he had left the show by the time the episode referenced in this post came out. After his departure, the show went on to engage in fantasies of bipartisan harmony and honorable Republicans.

  60. DrDaveT says:

    My preference, then, would be for Obama to nominate a relative centrist rather than a progressive Scalia-equivalent

    I haven’t the faintest idea what you could possibly mean by that last phrase. There are no progressive “Scalia-equivalents”. There is a fundamental asymmetry between progressive and reactionary thinking that you seem to have completely missed in your political science education.

    To put it bluntly, nobody as radically progressive as Scalia was obsessively reactionary could be considered a qualified jurist by either side.

  61. Firebringer says:

    @An Interested Party: Why [Senators should not be elected by popular vote]? It’s not as if the members of state legislatures are congruent with the electorate for presidential elections either…

    Well, for starters, it corrupts the system. I understand that there were problems that the federal legislature thought insurmountable enough to require a correction. But simply making the senators elected positions ended up being a harmful band aid. Why? Because it was a big step towards squashing states’ rights and the federal representation of the state government as an active participant in the overall role of government.

    At a minimum, the 17th amendment should have included term limits for senators, shorter terms (why are their’s longer than house members’ terms?), and a common recall procedure. Personally, I think there must have been other solutions preferable to an elected senate.

    There is a lot more to this topic, but I think the above accurately answers the question with my opinion (and this is just my opinion).

  62. Firebringer says:

    @DrDaveT: There is a fundamental asymmetry between progressive and reactionary thinking that you seem to have completely missed in your political science education.

    Hmm. I must have slept through this one too. Care to elaborate? [popping popcorn]

  63. Todd says:

    This solution only makes sense from a Democrat’s perspective if it appeared more likely that a Republican might win the Presidency in November. Despite my misgivings about Hillary Clinton, that just does not seem like a terribly good bet. In all likelihood President Obama will not get to choose Justice Scalia’s replacement. But odds are very much in favor of a Democratic President eventually getting his/her pick onto the court … and that Justice will almost certainly be to the left of not just Scalia, but Kennedy. The ideological tilt of the court was very likely to change in the next 4-8 years anyway. Justice Scalia’s untimely death just means that it will happen sooner (even if sooner is a year from now) rather than later.

    I can understand how a Republican might wish to find a way for the court to maintain it’s current rightward balance, but this “west wing solution” would only make sense for a Democratic President if the Court already had a 5-4 liberal tilt, and he was protecting against the possibility of a Republican being able to change it (with a Ginsburg replacement) should they win in November.

  64. James Joyner says:

    @Rafer Janders:

    You know very well that, due to the small state bias, which currently favors Republicans, the majority of Republican senators represents a smaller proportion of the American public than the minority of Democratic senators. Cumulatively, the Senate’s Democrats received 20 million more votes than the Senate’s Republicans. The electorate for a presidential election is not congruent with the electorate for each individual state’s senatorial election.

    That’s certainly a fair point—although the Electoral College mirrors that process. I’ve long argued for going to a simple popular vote for president. I recognize the inherent unfairness of California and Wyoming having the same representation in the Senate, although the solution to that is less clear.

    Regardless, that’s been our system of government since 1789. The fact that they’re elected under a disproportionate system doesn’t give Senators any obligation to give undue deference to the president’s nominees. While my preference is actually more in that direction than was Senator Obama’s during Alito’s confirmation, they have every right to consider ideology and the impact on the balance of the court in casting their vote. That said, I’d much prefer Senators rabidly represent their states rather than their political parties,

  65. James Joyner says:

    @Todd:

    But odds are very much in favor of a Democratic President eventually getting his/her pick onto the court … and that Justice will almost certainly be to the left of not just Scalia, but Kennedy. The ideological tilt of the court was very likely to change in the next 4-8 years anyway. Justice Scalia’s untimely death just means that it will happen sooner (even if sooner is a year from now) rather than later.

    I agree with that. If we have a third Democratic term in a row–and that’s my bet as well—then the Court will and should reflect that sea change. The current Court—at least as it stood before Scalia’s death—is a reflection of Republicans appointing every single Justice from 1969 to 1992 (Carter didn’t get a vacancy) and then 2001-2008. Unless the GOP nominating electorate somehow gets back on the rails, we’re likely in the same situation we were in during my youth, when one party had a virtual lock on the White House and the other controlled the House and had the easiest path to controlling the Senate.

  66. James Joyner says:

    @DrDaveT:

    There are no progressive “Scalia-equivalents”. There is a fundamental asymmetry between progressive and reactionary thinking that you seem to have completely missed in your political science education.

    To put it bluntly, nobody as radically progressive as Scalia was obsessively reactionary could be considered a qualified jurist by either side.

    We haven’t had one in awhile but Brennan and Marshall filled that role for decades. Not only did they invent entire categories of rights out of whole cloth but they ruled that capital punishment, which is directly mentioned in two Amendments to the Constitution, was unconstitutional.

  67. Firebringer says:

    @James Joyner: If we have a third Democratic term in a row–and that’s my bet as well—then the Court will and should reflect that sea change.

    I’m just having a little difficulty equating a presidential election as a sea of change. If the Senate remains Republican, doesn’t that have meaning as well given that they are an equal branch of government?

  68. An Interested Party says:

    Because it was a big step towards squashing states’ rights…

    States don’t have rights…citizens do…

  69. James Joyner says:

    @Firebringer:

    I’m just having a little difficulty equating a presidential election as a sea of change. If the Senate remains Republican, doesn’t that have meaning as well given that they are an equal branch of government?

    I lean toward the notion that “advice and consent” are two things rather than just one. Regardless, the president is both the only nationally-elected leader and the one who controls the appointment of Justices. With a divided government, presidents have to temper their picks ideologically. But I think Senate Republicans ought to vote on and confirm highly qualified, moderate Democrat appointments to the bench.

  70. MarkedMan says:

    I think James gets to the nut of the issue: the more branches of government a party controls the less rapidly they can invoke change. The Dems need the Repubs to lose the Senate before they can really dominate the courts. It will happen but will take time. I suspect the National R’s are heading the way of the California R’s: their radicalization creates a feedback loop that ultimately chokes off new membership. More radicals are attracted to the party, their voices become more dominant and that in turn pushes away non-radicals. Eventually they are close to ideologically pure but correspondingly shrill and extreme and they simply can’t attract enough people to keep their institutional advantage. I suspect that the motivated young no longer see the R’s as a party that can help accomplish anything. But it takes decades. The old guard has to literally die off. I suspect we are only about halfway there.

  71. Just 'nutha ig'rant cracker says:

    @Steven L. Taylor: On the other hand, Mark Levin was on a rant yesterday about how the “traitorous establishment” Republicans in the House and Senate have been “bending over and giving Obama absolutely everything that he has asked for for almost 8 solid years now” and how it is time for them so show some backbone by stalling the game out until the “loyal Americans who love their country” can vote in someone who will set things right.

    I don’t see much hope for the GOP to come out of this alive. I’m old enough so that I will probably not see it, but the Conservative movement as it is now is probably as doomed as the left of my bright college days. We didn’t see the end back then either (and some of us still don’t).

  72. Just 'nutha ig'rant cracker says:

    @Pch101: In fairness to Jenos, I, too, find myself bemused and/or amused at the way that this site’s main people turn to “WWJ(ed)D” when confronted by a thorny issue as if that will produce a workable solution.

    There’s a reason it’s called “fiction,” guys!

  73. Pch101 says:

    @Just ‘nutha ig’rant cracker:

    He’s just grasping at straws. Not much to see here.

    That being said, Sorkin does seem to have a sort of dream of an America that is basically liberal but that is kept in check by a loyal conservative opposition. (This was evident in The Newsroom.)

    I’m with Sorkin on that one — I want liberals to lead generally, at least at the national level, but not without checks and balances and some reasonable pushback that can restrain it.

  74. Kylopod says:

    @Just ‘nutha ig’rant cracker:

    this site’s main people turn to “WWJ(ed)D”

    The funny thing is that Lawrence O’Donnell, one of the show’s main writers (and a self-described socialist), has stated plainly that Bartlett was anything but an ideal liberal president.

    http://thinkprogress.org/alyssa/2012/02/15/426072/west-wing-writer-lawrence-odonnell-of-course-obama-is-a-better-president-than-president-bartlet/

    It’s true that Bartlett’s entire 8 years were under a Republican Congress (a situation that has never happened for any Democratic president in the real world). But as the above article points out, Bartlett didn’t even attempt to tackle any liberal goals that Republican legislators might have supported, such as prescription drug reform. (While the show did do a fictional reenactment of the 1995 government shutdown, the obstructionism that characterized Republicans in the Clinton years–let alone the Obama years–was basically nonexistent. The Republican characters on the show were mostly depicted as reasonable people genuinely interested in governance.)

    So why do so many people see Bartlett as some kind of idealized Democrat? I think part of it is the Harry Truman effect–people focus on his integrity and courage over any of his specific policy achievements (or failures). Especially in the early seasons, I got the sense the writers were going for a sort of “cleaned up” version of Bill Clinton. He was faithful to his wife, wasn’t the least bit sleazy, and was really a liberal at heart. There is actually an early episode where Clinton’s line from his second inaugural–“The era of big government is over”–shows up in a draft of Bartlett’s SOTU address, before the speechwriter decides to remove it.

    Also, sometimes the show was engaging in liberal fantasies that valued awesomeness over achievement. There’s a reactionary female talk-show-host character clearly modeled on Dr. Laura, and on one episode she visits the White House where Bartlett, to her face, knocks down her Bible-based homophobia using that old Internet meme.

    In case anyone is wondering, I happen to love the show, and it’s an absolute must-see for political junkies regardless of political orientation. The show’s writers have a detailed knowledge of the American political process, but they seem to prefer depicting their views of “the way things ought to be” over “the way things are.”

  75. Pch101 says:

    I don’t know how realistic it is, but I would suggest that politics junkies watch at least the first two seasons of Borgen, which is a Danish TV drama about a hypothetical first female prime minister.

    It involves a lot of inter-party coalition politics that you don’t find in the US, given the proportional representation, multi-party system in Denmark. Pretty engaging stuff — the show succeeds in making fairly mundane public policy issues into entertaining TV.

  76. Pch101 says:

    If you like the West Wing, then I would recommend looking for the first two seasons of a Danish drama named Borgen, which gives a multi-party parliamentary twist to things that we don’t get in the US.

  77. Pch101 says:

    One of the lessons being offered by the Bartlett faux-presidency is that idealism doesn’t get much of the job done. The Bartlett staff was earnest and intelligent, but not always adept at execution.

    Another lesson is that it is tough to get things done. The president may be the most powerful person in the world, but that powerful is limited.

    To that extent, the show is somewhat realistic (although I’m sure that the day to day work of policy making is a lot less exciting and more tedious.)

  78. Moosebreath says:

    @Pch101:

    Another fun TV series on government is the British “Yes, Minister”/”Yes, Prime Minister”. Much of the politicians’ time is spent fighting the bureaucracy to actually do what they promised to do, while the bureaucracy tries to promote its own interests which are often in conflict.

  79. @Moosebreath: A true classic.

    In re: “The West Wing”–I think that the central myth that drives that program is less some idealized liberalism but, rather, the belief that people in politics are fundamentally focused on governing and the arguments are just about how (and what the the problems are). It is the typical policy wonk fallacy that we political junkies often fall victim to.