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the nomination will either be voted down, or will reach the point where it is being so plainly blocked that it will be withdrawn.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.