All Americans should mourn the loss of Supreme Court Justice Antonin Scalia. Whether one agreed with him or not (and I was usually one of the “nots”), he was a true giant: a brilliant jurist and a man of integrity who applied the law as he understood it and, in the process, changed the Supreme Court forever. And he died as he lived: with a great flair for drama and an irresistible urge to make things complicated.
When the mourning is over, the two most powerful politicians in the country—President Barack Obama and Senate Majority Leader Mitch McConnell—will sit down to play an epic game of chess called, “who will get to appoint the next Supreme Court Justice?” The fact that we are just starting the presidential primaries, and will be in a general election throughout the summer, means that the game will have consequences far beyond the Supreme Court. The way that it plays out could dramatically affect the control of all three branches of government.
This will be a very different appointment than the other two that Obama has made. In replacing Justices Stevens and Souter with Justices Sotomayor and Kagan, Obama was essentially replacing liberals with liberals and not changing the balance of the Court. And he was working with a Democratic Senate that controlled the committee structure and the floor vote. He had to watch out for filibusters, of course, but his party controlled everything else. That is not the case today.
But Obama gets the first move, which, at the highest levels of competitive chess is often a decisive advantage. McConnell will have to respond to Obama’s opening move, and there will be real perils in any response he makes. I have no idea what this move will be, of course, but I suspect it will fall into one of three broad categories.
1) Obama could do nothing. He could agree with McConnell and most other Republicans that the next president should make the appointment, in effect, leaving the Court at eight members for the next two terms. In this way, Obama could avoid a fight that would consume the last year of his presidency, and the Supreme Court would be locked in a series of 4-4 tie votes on all of the issues that have usually been decided with Scalia participating in a 5-4 majority. This, in turn, would simply cause the lower courts’ decisions on these issues to stand.
This is unlikely, I think, as Obama has not shown any reluctance to start big fights in his final years in office. And he has a lot of moves to make—one of the being to point out that, under Scalia’s own signature doctrine of “originalism,” there is no way to argue that a president should forego making a judicial appointment during his last year in office. There is no way to read such an idea into the Constitution, or into the actual practice of the Founders, who had no problem appointing justices (as Adams appointed Marshall) even after losing an election to an opposing party.
McConnell, of course, controls the apparatus of the Senate. He can prevent an Obama nomination from even being considered in committee, and he can certainly make sure it never gets to the floor. But he cannot do so without consequences. And one of the consequences will be that the Democratic nominee will be able to paint him as an obstructionist willing to ignore the Constitution, and the legacy of Scalia himself, in order to prevent the President from performing his duties.
2) Obama could nominate a liberal judge to the Court. This is possible. He’s done it twice before (albeit under very different circumstances). There is virtually no chance that such a pick would be confirmed, however. McConnell would not have to stall. He would not have to block the vote. He could just let it come to the floor and be voted down with a solid Republican majority. Obama could even try this two or three times, with a guarantee of the same result.
But getting somebody onto the Supreme Court would not be Obama’s objective with such a move. Rather, he would be making sure that the Supreme Court was the number one issue in the Presidential campaign. And he could force Republicans to alienate large blocks of voters by refusing to consider candidates that they find attractive. It is unlikely that many Sanders voters would fail to back Hilliary knowing that, if she were to lose, they would almost immediately see Roe vs Wade scaled back and Citizens United made untouchable.
Of course, this could also help Republicans with low favorable ratings, such as Donald Trump. Conservatives who detest Trump would be motivated to support him if they knew that the Supreme Court was on the line from his first day in office. And the nomination of liberal justices—even with no chance of confirmation—could scare a lot of undecided voters into a Trump, Cruz, or Rubio camp.
3) Obama could nominate a moderate-to-center-right judge with strong ties to some Republican senators. If Obama nominates someone who is acceptable to some mainstream Republicans, then McConnell will be in an excruciatingly difficult position. He cannot allow a floor vote if there is any chance that it would pass.This would drive his conservative base berserk and could split the party in two. If any Obama nominee actually comes onto the Supreme Court during 2016, the conservative base will never forgive the Republican establishment.
To prevent this, however, McConnell will have to put his own Senate majority in serious jeopardy. He will have to stall and use procedural blocks for 11 months while Democrats are pointing to their perfectly reasonable nominee. Senators running for re-election in even slightly blue states will be on the defensive all summer, and there will be no oxygen left for any other issue.
If this scenario plays through, Establishment Republicans could face the worst choice of their political lives: do they want to lose their own base by allowing Obama to place a third justice on the Supreme Court; or do they want the job to fall to Hillary Clinton (or Bernie Sanders) and a Democratic Senate? They could even end up with Barack Obama, their greatest enemy, on the Supreme Court for the next forty years
This is all speculation, of course. Life has a way of complicating matters beyond what a political blog post can foresee or respond to. But it’s going to be an interesting nine months until the general election—and, whatever happens, the Supreme Court is going to play a larger role in 2016 than it has in any election in recent memory. I can only hope that Justice Scalia, wherever he may be, will enjoy the drama as much as I plan to.