For those of you living on a deserted island – or who somehow otherwise missed the news – Supreme Court justice Antonin Scalia passed away over the weekend. Unsurprisingly, it seems that before his last breath even faded the political battle over his replacement ended.
The conservative base, unsurprisingly, wants the Republican controlled Senate to dig in and refuse to confirm any nominees that President Obama makes to the court before his term is up in January 2017. Despite the horrified shrieking of Democrats, there is indeed precedent for this – although the case is perhaps not as strong as Republican shills would like to make it appear. But the root fact of the matter is that the shouting of both sides is mere political yammering.
All politics is power politics.
If Obama were able to replace Scalia with a liberal justice – even a moderately liberal justice – the court would mark a major leftward shift. This would be a huge win for liberals and Team Democrat – perhaps the biggest win in a generation, and that’s not an exaggeration. The effects of that victory would last at the very least until the next Supreme Court opening.
To be sure, the odds are strong that the next vacancy will be for one of the more liberal justices. With Scalia’s passing, the three oldest sitting justices are Ginsburg (82), Kennedy (79), and Breyer (77). However, as Scalia’s passing shows, anything can happen. If another four year presidential term passes without any vacancies – or with a conservative vacancy – then the court is fundamentally transformed, most likely for an entire generation.
The reverse, of course, is also true. If Senate Republicans successfully fend off a nomination until the election is over, there’s a strong chance of having Scalia’s replacement chosen by a Republican president. There is also, then, a strong chance of Ginsburg, Kennedy, and/or Breyer being replaced by the same president – especially if he wins a second term. Once more, the court would be fundamentally transformed, most likely for an entire generation. It would be a huge win for Team Republican.
Make no mistake about it: if the roles were reversed, the Democratic Senators who are currently complaining about Republican obstructionism would be vehemently opposing a Republican president making an appointment. Likewise, the Republicans would be labeling them obstructionists. The legal theories espoused by each side in this argument are strictly a matter of power politics. The players involved each want their own team to win.
And the further truth of the matter is that in this case the victory will go purely to the team with the political will to play. Obama absolutely will make a nomination. It remains to be seen if he’ll nominate a moderate in the hopes of breaking the resistance and winning a nomination or if he’ll nominate a strong liberal who will fire up his base. Either way, constitutionally, he has every right to make the nomination.
But by the same token, the Republicans in the Senate have every constitutional right to block it. The constitution gives no guidance on why the Senate should accept or reject a nominee. And if they choose to hold firm, they can absolutely prevent any nominee from being confirmed.
We conservative voters are currently very unhappy with the Republican establishment. A very large factor in our discontent is a feeling that Republicans in Congress are not fighting. We understand that control of Congress without control of the White House or the Supreme Court limits what can be accomplished. But we also see a Republican establishment that is refusing to fight the fights that it can – and should – actually win.
There is absolutely no reason that conservatives should lose this fight. It is pure power politics, plain and simple. The only way we can lose is if we lose the will to fight it. Unfortunately, that means that it’s extremely likely that Republicans will lose it.
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