The unexpected death of Supreme Court Justice Antonin Scalia in the middle of a Presidential race has brought the mental gymnastics of politicians and voters into sharp relief. On the most basic details, everyone seems to share a blessedly common understanding: the Supreme Court finds itself with a sudden vacancy, the President has the authority to nominate a candidate for the empty seat, but the Senate retains the power to confirm or reject that pick. Just about everything else that has been said on the issue has been shamelessly self-serving.
Let’s start with the Republicans. Afraid that the President would actually nominate someone that American voters would find entirely acceptable and that they would look like loons for painting whatever faceless, boring candidate the White House sent over as the harbinger of death and destruction, they struck first. Just hours after Mr. Scalia’s death, Senate Majority Leader Mitch McConnell came out and categorically declared that the Senate would refuse to consider any appointment by President Obama.
Months before even the candidates for his successor have been settled on, Republicans declared Mr. Obama a lame duck – apparently trying to unilaterally shorten the Presidential term from four years to three years. (At least, one presumes, when a Democrat is in office.)
They also gave final proof – if any were necessary – that they have simply refused to treat Obama as a legitimate President. One New Yorker headline (from 2011) sums their approach up nicely: “Republicans Accuse Obama of Using Position as President to Lead Country.”
Democrats have, reasonably enough, been outraged. They’re also frustrated. A Supreme Court appointment is among the longest-lasting policy legacies of a President. For a while now, Democrats have been concerned about the health of liberal stalwart and octogenarian Ruth Bader Ginsburg, who has thus far refused to proactively protect the balance of power on the court with a strategically timed resignation that would ensure that her replacement would be named by a Democrat. Now, as if providence had intervened, they are handed a chance not just to protect the balance of the court, but to change it in their favor – only to have the opportunity run into the same weed whacker that has cut through so many Democratic initiatives in the last seven years: Republican obstructionism combined with a Constitutional system of divided powers.
In their frustration, Democrats’ rhetoric has at times overreached. Two things stick out. First, the Democrats have emphasized that it is a problem for the Court to lack a ninth justice, since this makes it likelier the there will be a tie on important cases. While true, that’s a bit disingenuous. President Obama, for example, had no problem appointing Elena Kagan to the Court, even though it meant that she would have to recuse herself from a number of cases and thus deprive the Court of the odd number of justices that now seems so important. (Kagan had served as solicitor general, and had argued cases in that role that would later come before the Court, presenting a clear conflict of interests.) Then, the issue wasn’t whether or not an even number of voting justices was acceptable, the question was: compared to what? If it meant getting his choice for Associate Justice, President Obama was willing to go along with an even number of justices on the Court and the Democrats didn’t raise objections. Now that it means risking the ability to make an appointment, having an odd number of votes is suddenly crucial.
Second, while it is true that the Constitution gives the President the right to make appointments, it is also true that it gives the Senate an effective veto over those appointments. It would probably be more accurate to say that the President has the right to initiate the appointment process, not to control it. There would be nothing illegitimate, per se, in the Senate exercising its best judgement to reject a President’s pick. If a consequence of that rejection (and subsequent rejections) was that the President’s term expired without a vacancy being filled, the most that can be said is that both the President and the Senate failed in their duties.
But in discussing this, Democrats have tried to shade the argument, implying that the President has the right to make a successful appointment. In effect, Democrats are saying that the President doesn’t just have the right to fight with the Senate over Supreme Court vacancies, but that he also has the right to win. The Republicans played right into this by tipping their hand: every first-year politician knows that if you’re going to be uncooperative, you don’t actually come out and say it. By saying ahead of time that they would refuse to even consider a nominee, the Republicans did just that.
At least to their supporters, both sides sound sincere – the Democrats arguing for Constitutional order and the Republicans standing on the side of democratic input – but it is impossible to imagine that they wouldn’t change sides if the roles were reversed. (Let’s take a moment to pause and reflect on just how discouraging it is to see appointments to the high court – as well as that court’s jurisprudence – reduced to an exercise in partisan politics.) With a Democratic Senate and a Republican in the White House, Democrats would be keen to hold off as long as possible and hope for a victory in November, and Republicans would pull out all the stops to secure their standing on the high court. The stakes are simply too high to expect high mindedness.
That’s not ideal, but it’s also not a tragedy. Politics is rarely the realm of disinterested statesmanship. Elected officials will take self-serving positions from time to time, and then they will couch their self-interest in the language of principle. To quote Mr. Scalia, that’s little more than “jiggery pockery [and] applesauce”. And, as was often the case with Mr. Scalia’s dissents from the Court’s majority, we might not be able to stop them, but we can at least make sure to mock them.
It should also be noted that the Constitution allows for a way to break the sort of stalemate that Mr. Obama and Senate Republicans seem headed for: on November 8th, Americans will get to vote.
Follow Pedro on Twitter @IamPedroA.
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