Scalia Summons Short Sighted Stubbornness

Scalia Summons Short Sighted Stubbornness

or

Dear GOP: Do you know what a 4-4 Supreme Court Means?

 

chapman.0830 - 08/29/05 - A Supreme Court headed by Supreme Court Justice Antonin Scalia has questions for Chapman University Law School professor John Eastman as he and California Attorney General Bill Lockyer argue the 1905 ''Lochner v. State of New York'' case during a re-enactment Monday afternoon at Chapman University. (Credit: Mark Avery/Orange County Register/ZUMA Press)

 (Credit: Mark Avery/Orange County Register/ZUMA Press)

Antonin Scalia died today in his sleep. It is of course sad for his family, and my condolences go out to them, but as a Liberal I don’t mind the opportunity to have a Supreme Court that is 5-4 liberal. But as much as it would like to not be, the Supreme Court is always political, and with the exceptionally bad timing of his death it is going to be very ugly trying to come up with a solution for the now empty chair on the SCOTUS.

Of course, the politicking has already started. Mitch McConnell has already said we should wait until after the election to nominate a new Justice. Other GOP leadership figures have begun to say the same thing.

And on the one hand, of course they are. Not for the “will of the people”, because of course the people spoke–they decided they wanted President Obama to choose any SCOTUS justices for openings between 2013 and 2017, subject to the GOP Senate they also paradoxically chose. But because it would be great politically (from one perspective) and be a great way to kick start the beginning of the next President’s term if he is a Republican–to pick a righteous right wing fire-breather to reinvigorate the court with its greatest conservative lion gone.

The problem is they are wrong. They are wrong politically, for how it will look for them, and it is wrong for what it will do to their cases in the long run. Let’s look at each of them in turn to see why the GOP should, if they are smart, negotiate to a moderate center left Justice–and what the Democrats may say about the deal.

Part I: The Politics

The GOP is trying to stall to bank on the idea that they will win the election. Of course, I don’t think they will win–they overestimate how much of the country hates Hillary, and I think the GOP’s demographic problem isn’t going to get any better no matter who they nominate. But there are greater political things to consider here:

Delaying a SCOTUS nomination is going to try to gain political advantage in 2017 while ignoring the damage it does to the party’s image in 2016.

Imagine the following. Mitch McConnell stonewalls and the Senate refuses to even hold hearings on the matter, while talking about how much they are going to let the people decide. All the GOP nominees say that, that the people should decide.

If Democrats were doing it in an opposite circumstance, would the GOP cry out that it was political malarkey? Absolutely. Would the voters believe them? Absolutely. Because it would be–as I said above, the people have chosen. They chose a Democratic President, and a Republican Senate–so they essentially indicated that they wanted someone in the center.

So the GOP nominees are going to go on until November, along with the GOP Senate leadership, about how it is a matter of giving people the choice while the voters hear what they are actually saying: “We want to wait until we win.” And the more they hammer it and the more the Supreme Court flounders (see below), the more people will see the lie of their words for the truth of their intentions. And the more it will harm them in the long run, because it is an issue that they can keep being hammered on.

Imagine how Clinton OR Sanders will go after the nominee on what they are doing. Imagine if it is Ted Cruz, who has already demonstrated a willingness to hold the government hostage in order to enact his ideology–with explosive results. The rising tide of outrage that the Democratic nominee could surf on against the GOP will be almost literally palpable, and every time they bring it up to scour the GOP with it will take away independent voters and deprive them of any chance of seeing victory in the polls.

That leaves them having cost themselves valuable points and voters short of victory with the goal of letting the people decide, which means come January 2017 they have two choices. They either have to be willing to actually let President Sanders or Clinton have the nominee they want, or they will need to look even more like obstructionists by being…well…obstructionist.

But they can avoid that, if they force themselves to do the unthinkable and the unpalatable, if they are willing to compromise.

Part II: The Jurisprudence

The other reason the GOP wants to consider seriously is what this term does to any hope of them making major roll backs on Obama’s policies or the social changes of the country in the next couple of years, if they leave the sit unfilled.

Right now the court is considering Affirmative Action (Fisher). Coming up this term they are going to consider the latest challenge to Obamacare in the Zubik/Little Sisters of the Poor case, Obama’s immigration plan in the Texas case, and abortion in the Whole Women’s Health case. They were hoping to set long lasting precedents in these cases, with a strong chance to oversee major changes (specifically, to get rid of the thing at issue in all of them).

Well, if they leave Scalia’s seat open, they can’t do anything meaningful. That’s because of a Supreme Court procedural fact.

Occasionally, Justices have to recuse themselves because they participated in the case previously. You see this recently with Justice Elena Kagan, who was U.S. Solicitor General before she was on the court and therefore may have participated on behalf of the Government. When one of the Justices recuses it opens up the possibility of a 4-4 split, so the court decided that those are effectively mulligans. On a 4-4 split the decision of the lower court is upheld, but no precedent is set–so the status quo stays but it can’t be relied on in the future.

Zibek was decided in favor of Obamacare, so the requirement of religious groups to sign the contraceptive waiver would remain.

Texas is being ruled on an injunction, and in case of an equally divided court would go all the way back down to a district in Texas for trial, by my reading.

Fisher was decided in favor of the University, allowing it to use race. Affirmative action survives.

All of these represent basic liberal victories. While we would prefer outstanding victories in all of them, upholding the lower courts would still mean those three things survive. Even if, in immigration, only long enough to have a second round of SCOTUS litigation.

Whole Women’s Health was decided for Texas in the lower courts, so that would be a defeat. But it would still be a defeat that benefits the liberal cause more than the conservative, because it would mean Texas’ restrictions stay in place while no other states may rely on that decision in passing new ones.

So all in all things that the GOP absolutely hates would survive in to 2017, where there could very easily be a Democratic President and Senate even in the face of the likely GOP House of Representatives.

Part III: The Deal

In other words, unless my analysis is completely bunk (which I don’t think it is), delaying the appointment of a SCOTUS Justice is likely to represent a terrible choice for the GOP. They will lose face by being seen as obstructionist in the election, three out of the four suits they care most about will stay liberal victories for the time, and even the one victory they have will not roll back abortion like they would like. And all of this in the demographically uncertain hope of winning the 2016 elections–and if they don’t but do keep the Senate, they will face ire for having clearly lied about waiting for the ‘will of the people’ in the elections.

So then what is their option? Force a compromise. Force the Democrats to nominate the single most centrist person that they can while still being appointable by Democratic senators. Force them to bring someone to the table who might rule their way on one of the issues, in the hopes of not losing all of them. Take the wind out of the Democrats sails by working with them to find an acceptable centrist candidate who can bolster the Kennedy (and formerly O’Conner) swing vote.

And the Democrats might consider taking it, for two simple reasons. One, they are likely to win on three out of the four things they care about. And two, the next President is by no means guaranteed to be Sanders or Clinton–taking a centrist now is a way to ensure that they will have a strong voice on the court even if it is President Cruz. Or even worse, if the next President would appoint Justice Cruz (God forbid).

And let’s be honest…a Centrist in Scalia’s seat still drives the court inexorably the left. Hell, Genghis Khan’s ghost on the court drives the court at least a couple of steps to the left, given how far to the right Scalia was. A guaranteed voice of moderation on the court will still reshape it dramatically, and allow it to walk back some of its more insane jaunts.

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