Politics of the Court Fight and the Stalemate to Come

stalemateNew Orleans    As the sides dig in over the appointment of a new Supreme Court justice to replace Antonin Scalia after his recent death it is fascinating to watch in real-time the mammoth miscalculations that the Republicans, and perhaps the Democrats as well, are making about the likely impact of their positions on the appointment based on the early polling. The Republicans, led by Senate Majority Leader Mitch McConnell, believe that they will suffer no political damage from shunning any potential nominee proposed by President Obama. The Democrats think it will be a huge potential electoral issue driving the November election outcome. The basis for both positions is the early polling.

The Republicans say the country is more or less split down the middle on whether confirmation should wait for a new President after the election according to their reading of the polls. Democrats say that the critical block of independents believes that Obama’s nominee, whomever that might be, should get a fair hearing, also according to their reading of the polls. Neither side seems willing to admit that these are all polls taken before there is a nominee and before there is really a fight, which makes this a classic case of “premature certainty” in politics since both sides are simply guessing.

Meanwhile the President is clear. He has a constitutional obligation to nominate a replacement and, as some have noted, he was elected twice with significant majorities so the voters have already decided the question in terms of his right and obligation to make sure an appointment is made. This is also a classic case of a job that “goes with the territory.”

It is easy to see how all of this could break bad. First, the gambit of floating the Republican governor of Nevada gives a clear signal that Obama, wisely, is going to put someone forward who is not only eminently qualified as he continues to promise, but also someone walking the famous white line down the middle of the road. Once there is a face to the fight, it is almost unimaginable that the polls won’t reflect an interest in Senate hearings to get the measure of the nominee, and voters will invariably recognize that this is also part of the job that goes with the territory of being an elected Senator.

Those situations will be minor next to the pileup that is coming in potential 4-4 deadlocks in Supreme Court decisions. The right won’t be happy that losing the chance to overturn union shop dues collection in the Frederichs case. The left, and a huge number of women, will not be happy if a 4-4 decision on abortion clinic doctor hospital privileges leaves women with terrible options in Louisiana, Texas, and elsewhere now that clinics are being forced to close. A deadlocked decision is not a tie that goes to the runner, nor is it a do-over, but a reversion to the previous court’s decision, good or bad. There is nothing about this heightened sense of dysfunction that is going to go over well with the American people.

The best the Republicans can really hope for is that all politicians from both parties will be blamed, letting them escape out of the side door. The best the Democrats can hope for is that it increases voter turnout in November. All of it leads voters to believe it’s a pox on both of their houses, and that’s not good for democracy, even if it delights the Trumps’ and Cruzs’ of the political world.

Stop reading the polls, and start listening to people!