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The Case For Patience In Naming A Successor For Scalia

Supreme Court Justice Antonin Scalia is pictured on July 26, 2012, at the Supreme Court in Washington. (Haraz N. Ghanbari/AP)closemore
Supreme Court Justice Antonin Scalia is pictured on July 26, 2012, at the Supreme Court in Washington. (Haraz N. Ghanbari/AP)

Nowhere does the partisan divide seem more apparent than in the aftermath of Justice Antonin Scalia’s death. A unified Republican party says it will do anything it can to stop any nomination from President Obama. Given that the GOP controls the Senate, it seems likely it can make good on that pledge. Democrats in turn are in a fury, piously seeing themselves as upholding the Constitution while Republicans are abdicating their responsibilities and playing political games.

Does anyone doubt, though, that if the situation were reversed that it would be the Democrats pushing for a delay? If, hypothetically, a Republican were in his final year as president, the Supreme Court was narrowly divided, and the Democrats controlled the Senate, you can be certain Democrats would be as determined as the GOP is right now to delay a new Supreme Court pick. In other words, what we’re seeing is typical and predictable politics — with one twist: Maybe this is a battle where, by losing, the Democrats actually win.

what we’re seeing is typical and predictable politics -- with one twist: Maybe this is a battle where, by losing, the Democrats actually win.

This year there are a number of cases awaiting the court’s decision that will — thanks to Scalia’s passing — probably break in Democrats’ favor. One is a California case challenging the right of public labor unions to collect dues from non-members. The union’s side was heading for an almost certain loss. Now, with a likely 4-4 tie vote, the lower court’s decision will be upheld — and that decision favored the unions. Another case is from those who disagree with the contraceptive provisions of Obamacare. Again, it looked as if those objectors would win 5-4. No longer.

Indeed, it’s hard to imagine that Scalia’s vote would have supported Democrats’ positions in any of the hotly disputed cases before the court this term. Ties sometimes help and (given the way Scalia would have voted) they certainly won’t hurt. Too be sure, things may get confusing and messy, since the whole idea of the court is to settle disputes. Still, for the time-being, Democrats are somewhat in the catbird’s seat.

Of course, if they had their druthers, Democrats would prefer to have a new justice more in tune with their ideology, which is why we’re seeing the push for Obama place a name in nomination. Practically speaking, however, Obama’s position is a weak one. If he were to have any hope at all of getting a candidate past the Republican-controlled Senate, he’d have no choice but to propose a moderate — or even one that on occasion leans rightwards. That’s why the names being bandied about include those such as Utah Sen. Orrin Hatch (who, at 81, is two years older than the man he would replace) or Merrick Garland, who sits on the Court for Appeals of the District of Columbia. Hatch is widely respected (and was one of the late Sen. Ted Kennedy’s best friends) and Garland too is well-liked across the aisle. Neither man — or others who might make it through the Senate gauntlet — would be a certain vote on issues about which Democrats care most.

So why not wait?

The Democrats could lose in November, in which case we’d be back to a court that looks a lot like it did when Scalia was alive.

Most current polling suggests that a Democrat will win in November and, Bernie Sanders’s recent surge notwithstanding, that Democrat will likely be Hillary Clinton. Moreover, many Republicans fear that an extreme nominee such as Donald Trump or Ted Cruz might cause more moderate voters to also reject GOP House and Senatorial candidates, possibly shifting the balance of power in both bodies. With a freshly won election and the possibility of picking up some seats in the Senate, the new president would be in a strong position to nominate a candidate more in keeping with Democrats’ values. Indeed, the argument the Republicans are making — that the American people should have a voice in selecting the next Supreme Court justice — would now be turned against them. A President Clinton would have exactly such a mandate and the deference generally accorded a newly elected leader would help with any confirmation hearings.

Granted, it’s a calculated risk. The Democrats could lose in November, in which case we’d be back to a court that looks a lot like it did when Scalia was alive. That prospect, however, becomes one of the best arguments Democrats have this fall to make their case with voters and eventually get the Supreme Court justice they want.

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Tom Keane Cognoscenti contributor
Tom Keane is a Boston-based writer.

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