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!


Obama’s Free Shot at the Supreme Court

Supreme_Court_Building_at_DuskLondon    The sudden death of arch conservative Supreme Court Justice Antonin Scalia at 79 after 30 years on the Court is one of those rare events that has the potential to be a game changer and unsettle the already turbulent events of the election season. Taking to heart the Latin proverb “De mortuis nil nisi bonum,” roughly translated “of the dead, nothing unless good” or essentially, speak no evil of the dead, I would note that in his passing in the Big Bend country of Texas along the Rio Grande, we share in common a love for the rough, solitary beauty of that part of the country. And, so enough said on that score.

The frequency of tough 5-4 decisions on the United States Supreme Court found shifting power in the swing votes of first retired Justice Sandra Day O’Conner and now Justice Anthony Kennedy with four somewhat dependable liberal votes and four often rigid conservative votes marshaled by Chief Justice Roberts but prodded and poked by Justice Scalia, means that President Obama has the opportunity to at least improve the odds by diluting the presumptive four conservative votes. As the partisan sides quickly harden around this opportunity with Senate Majority Mitch McConnell already asking the President to leave the appointment until a new President is elected, essentially punting until 2017, and Democrats begging for a chance to create a liberal majority, unquestionably the potential for a battle royal looms large. The Republican majority controlled Senate has to confirm or reject any possible nominee, and President Obama has correctly just as quickly indicated that he will fulfill his constitutional responsibility and nominate someone in due course. One analysis indicated that the average time from nomination to confirmation is over 100 days, so there’s more than enough time, though others indicate that it is often hard for a President to get this done in the last year of office even in the best of times, which is obviously not now.

What do I know, but it seems to me this is almost a free shot for the President if he is willing to be realistic, as Hillary Clinton would say, or modest, as progressives will think. Obama doesn’t have to nominate a liberal jurist for all of us and the country to come out ahead on this matter. Virtually, anyone, even a middle-of-the-roader, if one can be found acceptable to all sides, will give us better odds for a fairer vote on the Court than Justice Scalia.

Obama knows that clearly enough. The notion that California Attorney General Kamila Harris or Senator Cory Booker might be nominees is almost preposterous. Neither could be approved. If I were whispering in Obama’s ear I would say, nominate a moderate jurist who is African-American or perhaps even better Hispanic, that offers political risk to rabid opponents in the coming election, but who might be acceptable to Republicans based on reputation and body of work.

Obama doesn’t need to make a half-court shot here or something beyond the arc to put us ahead of where we are. He’s got a free throw if he can make it right from the line in the middle of the court, and we could still come up winners, as long as we remember where we have been more than where we might like to go.