American
politics. What’s not to love, especially from a safe distance?
Antonin Scalia,
contrarian and intellectual bruiser that he was, would I think have enjoyed the
prospect of the argument which will follow on his death in the midst of the
nastiest and most unpredictable presidential campaign in living memory. Here’s
my immediate thought on how this will play out. (Unless of course another
justice pops their clogs, in which case we are in West Wing territory.)
First, and most
tentatively: I suspect the focus on this issue will do some limited damage to Donald
Trump and, by the same margin, boost Ted Cruz during the Republican primary
contest. Cruz has been banging on about the Supreme Court forever: it’s his
issue. But the issue is also a reminder that the Presidency of the United
States is a solemn office with serious responsibilities, which may possibly
make some of those who think a reality-TV star would be fun reconsider their
choice. But, that is a side issue.
President Obama
will of course ignore the calls for him to postpone a nomination. But he will
choose an exceptionally centrist, moderate, overqualified candidate, daring the
Republicans in the Senate to vote him down (it will almost certainly be a
‘him’). Some of those Republican senators who are facing uphill re-election
battles this November will be tempted to approve the nomination, but there will
not be enough votes to break a filibuster and the nomination will either be
voted down, or will reach the point where it is being so plainly blocked that
it will be withdrawn.
Then, the
President will make a second nomination, of a candidate who will be more of a
red-meat, base-pleasing Democrat. Hillary Clinton, who will be then be the
unmistakable Democratic nominee for President, will lend her firm approval to
this person, and make clear that if she is elected and the post is not yet
filled, she will back the same candidate.
Naturally this
candidacy will be dead in the water before the election. But it will mobilise
the Democratic base, and will prove especially useful in rallying women to the
Clinton candidacy, by presenting her Republican opponent (whoever he is) as
part of a wider ‘war on women’. It may also (by setting her more clearly
against Citizens United) help her to shake off her in-bed-with-Wall-St problem.
It will further enrage the Republican base, of course, but that base is already
about as angry as it can get, and no matter how angry they are they still only
get to vote once. So it’s a net benefit to the Democrats.
If she wins,
and if the Senate shifts somewhat on her coattails, then the nominee or someone
similar will get confirmed either before or after her inauguration. If she
loses, of course, the Republican winner gets to do that – unless the Senate
flips anyway, in which case let’s imagine a quick abolition of the filibuster
and attempt to squeeze a confirmation through in mid-January 2017, giving the
Supreme Court a solid liberal majority until Justice Ginsberg follows her old
friend’s example, and giving the country a particularly nasty sense of
political illegitimacy. That would be bad.
Indeed, placing
a crowd-pleasing, red-blood Democrat on the court might be bad too, and I say
that as an instinctive Democratic supporter. Who thinks that what America needs
is sharper partisan division?
So perhaps the
cleverest thing that Republican senators could do is to call the Democrats’
bluff and accept a centrist nominee, so boosting their own re-election hopes,
spiking a key campaign issue for their opponents, avoiding the danger of having
a really unpalatable justice on the court and, incidentally, bringing a measure
of healing and moderation to the republic. And of course, the decision would
come too late in the year for any of them to have to worry about primary
challenges.
But of course,
they won’t.