The Republican Strategy on Scalia's Vacated SCOTUS Seat is Risky
The strategies expounded by the Republican Presidential candidates during Saturday’s South Carolina debate—and echoed by Senate Majority Leader Mitch McConnell—are transparently partisan and have risk that no one has yet to acknowledge both in the near term and long term.
The Stakes are High
Anyone following politics knows the stakes are high. Prior to Justice Scalia’s death, the Supreme Court of the United States (SCOTUS) was comprised of five Republican and four Democratic appointed justices. While President Obama has already replaced two justices on SCOTUS, he was replacing previous Democratic appointed nominees. Now President Obama has the potential chance to change the ideological lean of the court. Republicans are right to see it as a huge risk to the way laws are interpreted and applied. With cases involving Affirmative Action, new EPA rules, the President’s Immigration Executive Action; there’s a huge impact if the court swings from leaning conservative to leaning to the left.
With so much at stake, it makes sense that Republicans would search for and use any viable reason to prevent this from happening. Furthermore, due to the short time from the announcement of Justice Scalia’s untimely death to and the Republican debate made the proscribed theories and strategies rather transparently partisan. Two main strategies emerged. Donald Trump phrased strategy one as, “Delay, delay, delay” in which the Senate should drag its feet and run out the clock. The second argument put forth was that no President should nominate anyone for the Supreme Court during an election year, “The country deserves to be heard”.
Strategy One (“Delay, delay, delay”) has some merit. Republicans could make the claim that there simply is not enough time for the Obama Administration to properly research and vet a potential nominee, while leaving enough time for the Senate to do the same, conduct Judiciary hearings and then plan and have the vote. I would term this strategy, “The Republican Keystone Pipeline Defense” because it would be a transparent partisan attempt to slow or stop something by blaming bureaucratic process for the unreasonable length of time while purposely slowing down the same bureaucratic process and waiting for a more favorable political opportune moment. It worked for Obama with Keystone—the price of oil declined significantly, the Canadian company rescinded the request and then magically the bureaucratic system worked fast and Obama denied the request with days. Perhaps it will work for the Republicans too. Government processes do take time, but there are a lot of counterpoints that are hard to defend. Government processes do take time, but they can go faster on important issues, and the fact that Republicans came out so fast indicates that the length of time would be politically motivated.
While the first strategy describes how the Republicans could work within the Constitutional framework to delay the nomination prior to having a vote, the second strategy makes the argument that the President “should not” nominate someone to fill the vacancy in the first place so close (~268 days) from a general election. It is an opinion based appeal clothed in “Let the people decide” arguments and that the next election can become a referendum on the issue. Both this strategy and the ‘delay’ strategy have several problems and a few risks for Republicans in the near and long term.
Problem #1: Republicans fail the Rational Independent Test(otherwise known as “Who do Independents/Non-Partisans blame?”)
Whenever there is a partisan disagreement—and there will be if the Republicans implement this strategy—the side that gets the blame is usually the one that moderates or nonpartisans think are being unreasonable. During the government shutdown in 2013, that was the Republicans. Sure, one could buy the argument that the Republicans won the 2012 election—and “elections have consequences”—but most people without a dog-in-the-fight considered the argument that the President should allow the repeal of his biggest legislative accomplishment merely to pass a budget during a divided government tantamount to blackmail. Republicans were duly punished in the opinion polls and provided a ready excuse and top-cover for the disastrous healthcare.gov rollout (not that it mattered much in the 2014 mid-terms). The question poised now is less certain. Eleven months is a long time to not be able to nominate and confirm someone if there is a sense of urgency, but it would be reasonable to believe that there is a time period in the waning parts of a presidency when this argument is completely valid. LBJ tried to nominate two justices to Supreme Court in the waning days of his presidency only to rescind them later when they had no chance.
Problem #2: Republicans’ logic doesn’t work both ways.
Imagine a scenario where a Republican president was in this exact same scenario. Republicans in this scenario wouldn’t buy off on the logic that current Republicans are leveraging; it’s completely transparent. They would not buy the argument that there isn’t enough time nor would they buy the argument that President is duty-bound by precedence or character to not submit a nominee. That’s a problem, and it increases electoral and SCOTUS risk for Republicans.
Risk #1: 2016 general election risk for the Presidential and Senate elections: it’s not 2010 after all
If Republicans refuse to bring a nomination to a vote by creating clear partisan roadblocks for this nomination, will—at best—not help the Republican cause in the general election in November. There is a distinct risk this will reframe the election for partisan Democrats and motivate them at a time when Democrats are much less motivated than Republicans. This would obviously hurt Republican chances to win the presidency. Worse for Republicans, the incumbent Senators up for re-election were elected during the Republican wave election of 2010. For those that don’t remember, the 2010 election had a lot of things going for Republicans. First there was a lot of negative reaction and sentiment from the population at-large for the Affordable Care Act (ACA)—republican grass roots were up-in-arms—and most importantly it was a midterm election. All of these factors helped Republicans pick up a number of swing and liberal-leaning states. Now those Senators have to defend themselves with an election that is younger, less-white and more liberal all at time when they don’t have the 2010 ACA and budget-related grass root winds at their back. This could be one more nail in the coffin for some. This could cost Republicans both the White House and the Senate.
Risk #2: Republicans lose the presidency and control of the Senate & a more liberal Justice is confirmed as a result
Here is the Risk that no one is talking about. If the Republicans lose the White House and the Senate in the 2016 general election, then a more liberal Justice will be nominated and confirmed by the new President and Senate respectively. There’s a non-zero chance this happens. By using the short-term thinking the right is advocating for, Republicans may be forgoing the leverage they have now to only have a weaker hand to play later. Of course, it’s entirely plausible that the Republicans could win the presidency and hold onto the Senate; if the Republican confidence prior to the 2012 election is any guide, and judging by the complete advocacy for the ‘delay’ strategy is any guide; then it’s not hard to surmise Republicans are willing to risk a very liberal justice for the chance to win a more conservative justice (another loss-aversion decision that behavioral economists will smile at).
Risk #3: The window to actually accomplish something in Congress gets even smaller
The last risk isn’t a risk to the Republicans per se; the risk is a common-goods problem, which in-and-of-itself is one reason it is such a problem. There is already a significant portion of time that laws and legislative actions are accomplished. For example, nothing of legislative significance is expected to pass this year. The period of time that “nothing” gets done tends to grow, not decrease. By further expanding the periods of time legislation can’t get accomplished, our democracy is worse for it. To be fair, Republicans don’t have this market cornered. Senator Schumer said in 2007 that he wouldn’t allow any potential President Bush nominations through, a full 17 months from the 2008 election.
What Should Republicans Do?
Senate Republicans should negotiate with President Obama and try to get someone similar to a left version of Justice Kennedy; someone who is left leaning, but can be swayed to certain conservative causes. That should at least be their position now. This way they could credibly vote down nominations that are too liberal. In the “too liberal” scenario, it would help win the “reasonable person” debate and help them credibly run out the clock if President Obama made the mistake of nominating someone that seems too liberal.
Negotiating for a more moderate nomination from President Obama could also be an effective hedging strategy. By getting a moderate nominee on the books, Republicans could then run that nomination “through the legislative process, while keeping an eye on the general election. If the risk of losing the Senate, losing the Presidency, or any other outcome that would produce a worse nominee after the election goes up, then Senate Republicans could push through the moderate. If the upcoming election looks more favorable, then they could drag out the process, but later in the cycle when the narrative might have enough time to develop and there might not be enough time to drum up liberal rage.
The current strategy is too short-sighted. It’s transparently partisan and doesn’t help the conservative cause or help America’s democracy in the long run. There is a better way.