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Shortly after Justice Antonin Scalia's death last weekend, Senate Majority Leader Mitch McConnell dug himself into the strange position that the Senate shouldn't approve any replacement this year, simply because it's the final year of Barack Obama's presidency. But really, there's more to the story than that. Here's the case McConnell would make if he were being brutally honest.
My fellow Americans, let me address you frankly about the choice our nation faces.
Justice Scalia was a strong, solid conservative. And whoever Barack Obama nominates to replace him is certain to be well to his left — and will likely be very, very, very far to his left.
This would upset a balance of power in the Court that has existed for decades. Instead of a five-vote majority that is generally conservative, a Scalia replacement appointed by President Obama would allow a new majority bloc of five solid liberals to form. On issues affecting free enterprise, the sanctity of human life, and federal power, sweeping new liberal rulings could reshape law and precedent across America.
I believe this would be a disaster for the country. Most members of my party believe this would be a disaster for the country. And most of my party's voters believe it would be a disaster for the country.
So I'm going to do my best to stop it from happening.
We should all just admit that this is an ideological fight
You'll notice that I am very straightforwardly framing this question of Justice Scalia's replacement as an ideological question. And this might strike you as unusual, even though essentially every member of Washington's bipartisan political elite privately understands this is true and has long acted like it's true.
That's because our political norms around Supreme Court nominations are silly, outdated, and inadequate for our modern polarized politics. Members of both parties have to pretend that we really, truly care about each nominee's individual traits and qualifications. So no president these days would ever nominate anyone who'd openly admit to having — gasp — an ideology.
In reality, though, presidents of both parties try to game the system here. They nominate people, like John Roberts or Elena Kagan, who lack long paper trails and profess to be, and appear to most casual observers to be, ideology-free. But when they get on the Court, they generally join one bloc or the other — Roberts generally votes with the conservatives, and Kagan votes with the liberals (though there are some important exceptions, like Roberts's votes to uphold Obamacare!).
Take abortion. Barack Obama is never going to nominate anyone who he thinks disagrees with the Roe v. Wade ruling to the Supreme Court. And a Republican president will never nominate anyone who he thinks agrees with that ruling.
There shouldn't be anything shameful about this. Many hugely important and unavoidably political cases involving issues that could affect millions of people across the country reach the Supreme Court. So a president will naturally seek out a nominee who shares his or her views on those issues.
But that means senators should also feel perfectly free to oppose a nominee on ideological grounds. We don't know who Barack Obama's nominee will be, but we know perfectly well that Obama will never nominate a conservative. Why should we pretend we don't know that?
Democrats would do what we're doing if our roles were reversed
I want to address my liberal friends for a moment, and ask them to put themselves in my shoes — by thinking back to President George W. Bush's final year in office.
At that point, President Bush had already nominated two conservatives to the court, including one, Justice Samuel Alito, who many liberals argued had moved the balance far to the right. Since then, the Democrats had taken the Senate. And there were widely understood to be five votes on the court to uphold Roe v. Wade.
Now, what if a staunchly liberal justice had, God forbid, suddenly died?
Of course Democrats wouldn't have just sat back and let Bush appoint a replacement who they had good reason to believe would overturn Roe. Come on, take off your partisan blinders and admit it.
Not convinced? Well, did you know that back in 2007, current Democratic Senate leader-in-waiting Chuck Schumer said his party shouldn't confirm any other Supreme Court nominee from President Bush "except in extraordinary circumstances?" He even went so far as to say they "should reverse the presumption of confirmation" because "the Supreme Court is dangerously out of balance."
Sen. Schumer — who's a mainstream Democrat, and not at all on the party's left flank — has long been refreshingly honest about the role of ideology in judicial nominations. But rest assured, this is what his party's leaders believe, it's what his party's activists believe, and when push comes to shove, it's what his party's voters believe. Whoever President Bush nominated in that hypothetical 2008 vacancy would have been blocked by Democrats.
We're not causing a huge crisis — we're kicking the can down the road to 2017
Yes, yes, in suggesting that President Obama shouldn't appoint any replacement for Scalia, and that he should just leave it to the next president, I am rhetorically going further than others have in the past.
But really I've just hit the fast-forward button. We would have ended up opposing whomever Obama nominated, because that person would, of course, have had liberal views. And my party's senators would never have approved any other Obama Supreme Court nominee anyway, because they're terrified of losing their seats in primaries.
So maybe my "no nominees in the final year" position hasn't explicitly been taken by anyone before, but it hardly means the death of our constitutional democracy. The near-term upshot is that one Supreme Court seat stays vacant for a year. Some closely divided cases will effectively remain unresolved for a bit. Big deal.
Point is, the gridlock will likely be cleared up in 2017. If we win the presidency, the next president will nominate a conservative, and, ideologically, the court will stay where it was before Justice Scalia's passing. And if Democrats win in 2016, they'll most likely take over the Senate too, and will be able to get a liberal justice through.
But there's one scenario I'm not quite sure about — and that's if a Democrat wins the presidency but my party keeps the Senate. My senators and I will still have those same ideological incentives to block a Democratic nominee. Yet it really would seem shocking and unprecedented for us to block every single nominee put up by the new president for four years. So that's a tough one.
We'll cross that bridge if we come to it, though. For now I've helped clarify this year's electoral stakes for both parties, and for voters in general. So let the people weigh in, and let the chips fall where they may.
