The enbalmer has hardly taken a peek at the remains of former U.S. Supreme Court Justice Antonin Scalia, but already the political world is hard at work trying to digest what might happen next in the battle of wills between President Barack Obama and U.S. Senate Republicans for the confirmation of Scalia’s successor. As for Obama, he ain’t slowin’ down — expect him to bring a nominee to the scrum very soon. As for the Senate Republicans, well, would you expect them to be in anything other than “just say ‘no’” mode? Fortunately for progressives, this is a win-win situation — there is almost nothing that the Senate can do through obstruction that will not play to the advantage of the Democratic candidates for the White House this year — and, perhaps, many more.
The promised SCOTUS nomination obstruction by the Senate could turn the election into a referendum on the Supreme Court — and emotional referendums are great for turnout. If the Republicans want to obstruct Obama’s nominee, then they are handing Democrats a sure-fire tool to get people to the polls — and, perhaps, even enough people to turn some House and Senate races to the point of making a tip in Congressional power not unthinkable. Hillary Clinton, in particular, has already highlighted in her campaign the importance of the next President’s ability to nominate SCOTUS justices, but that’s a theme that rarely gets people to the polls in and of itself. On its own, it’s the sort of thing that rarely gets people thinking on election day about anything other than how long the line of cars will be at a fast food pickup window.
But as a drama playing out day by day on the campaign trail, with lots of support from Obama and the conflict-obsessed media (start the countdown clock, CNN — how many hours and days will it be?), it will be free campaign advertising and a cudgel in the hands of the candidates delivering Democratic stump speeches. Yes, two can play at this game, and we can expect the Tea Party crowd to rally their own troops around this banner. But given Citizens’ United and a host of other squirreley SCOTUS decisions, and the inability of Congress to do much of anything that would justify a referendum, this could turn out to be the key thing that would make the value of a vote important to progressives who seem to eschew polling stations when anything other than the purest of ideals is at stake. What could be more pure than putting the U.S. Constitution in more solid hands?
As for Obama’s choice, in theory this ability to use the issue as a referendum might enable him to choose a more progressive justice for the SCOTUS bench, so as to heighten the referendum-like aspect of this contest of wills, but it’s likely that he’ll go with a candidate whose values will most align with the ones that he wants underscored for his legacy. Based on this motivation, sticking with a Sri Srinivasan as his nominee might not be a bad bet from Obama’s perspective. But in a sense the SCOTUS nominee is going to be a de facto nominee on the Democratic ticket this year, so it’s possible that he’ll go with someone whose profile might help to optimize the coattails appeal of voting Democrat this year up and down the ballot.
Best of all, the Republicans have pretty much painted themselves into a corner with their hasty adoption of a “no retreat” stance on blocking a nominee. If failure to vote on Obama’s nominee becomes the campaign referendum issue that it is likely to become, then they have shot themselves in the foot mightily. If they retreat and give Obama his nominee, then they look like a bunch of cowards to their supporters, and their own turnout is suppressed. Obama and the Democrats have an excellent opportunity to position the Senate Republicans as failures, either way.
It will be interesting to see how smart the Democrats play this, but with such a valuable opportunity falling into their lap through Scalia’s unexpected demise, it would be disappointing if they did anything other than to play it brilliantly, both for the long-term betterment of the court and for the long-term health of the other two branches of our Federal government. We’ll see.