On SCOTUS vacancy, Republicans are probably screwed

There’s really no other way to put this: fallout from the death of Supreme Court Antonin Scalia in West Texas last weekend has zero likely positive outcomes for Republicans, either from a legal or political standpoint.

The immediate knee-jerk from the GOP leadership in the Senate, from Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley (who controls the first stop for any Supreme Court nominee), to the two U.S. Senators running for President, Ted Cruz and Marco Rubio, was to immediately dismiss even the possibility that President Obama should nominate a replacement for Scalia, leaving it for the next President. Sight unseen, Republicans were proclaiming an Obama pick to be DOA, leaving a Supreme Court vacancy open for a year, and insinuating that a President who had, at the time, 341 days left in office is without Constitutional duty or power.

GOP leaders have softened in the hours since, either by backing away from earlier statements or by their silence. It is slowly sinking in that no matter what they do, they lose.

The simple fact of the matter is that the President has an absolute Constitutional requirement to appoint Justice Scalia’s replacement. It is equally true that the U.S. Senate has an absolute Constitutional requirement to deal with it. But the Senate dealing with it can legitimately range from confirming Obama’s choice, to making paper airplanes out of the paperwork the White House sends over.

I totally get it – the Senate Republicans want to run out the clock on the Obama Presidency, work to make sure the Republican nominee wins the Presidential election, and preserve their conservative wing of the court. At the same time, however, it is slowly dawning on them that the process of running out the clock also makes it much less likely that they’ll win the Presidential election. They find themselves in a terrible “catch 22” situation.

It is in examining the Senate Republicans’ choices that it begins to sink in that there’s no likely way for them to win. Here they are:

Do nothing: 

Obama could send a nomination that the Republican leadership does nothing with. They don’t call hearings. They don’t call for a vote. The nomination just languishes over time. Most of an entire year. The GOP messaging would likely be that the pick of a President this late in his final term isn’t valid, thus the next President should pick. This is similar to their first knee-jerk reaction following Scalia’s passing.

There are two huge problems with this, one legal and the other political. The legal ramification applies to any scenario in which the Senate doesn’t approve an Obama pick: it leaves a 4-4 tie between the conservative and liberal wings of the court. A tie on the Supreme Court means that the lower court ruling stands. There are many lower court rulings currently pending in which conservatives were counting on the high court to overturn. This will not happen until a full Supreme Court is seated. Given that President Obama isn’t likely to nominate a justice of conservatives’ liking, it probably wouldn’t happen anyway, but with a ninth justice seated, conservatives would at least have a chance of convincing the new justice on a case-by-case basis of the logic of their argument on a case.

The political problem is even more perplexing to them. It’s potentially huge, and it’s a game-wrecker for them: Republican attempts to push a nomination for an entire year, into the next Presidency, open up a huge opportunity for Democrats to point out to an essential coalition — the ones who showed up in droves to elect Barack Obama — that the GOP doesn’t believe Obama’s is a legitimate Presidency – the fastest way I know of to create the anger and motivation to reignite that coalition and elect a Democrat this fall.

Go through the process, but obstruct:

After Obama sends over his nominee, hold hearings, slowly, before voting down the nominee. Then repeat. Then repeat again if necessary. Run out the clock on the Presidency. The GOP messaging would have to focus on the nominees being unqualified. They would side-step the “Obama isn’t a legitimate President” insult, and instead concentrate of Obama’s nominees being clowns.

The main problem with this lies in the likely high quality of the President’s nominee(s), and/or the likelihood that a nominee would mirror important Democratic coalition goals – African-Americans, Hispanics, women, LGBT, etc. He could send over somebody who recently sailed through Senate confirmation without a hitch, making it more difficult for Republicans to explain why they recently voted to confirm this person for one thing, but suddenly believe this person is unqualified for another thing. Obama has several choices for nominees such as this, including the current Attorney General, or a D.C. appeals court judge who sailed through on a 97-0 vote recently. He could send over any number of nominees who the American Bar Association deems highly qualified. The biggest problem with Republican messaging on this front is that ultimately the American people have to believe the message., A highly qualified nominee blunts that considerably. The most likely outcome is the same as in the “do nothing” scenario – Republicans are seen as obstructionist, leading to anger and high motivation for the Obama coalition, and a much greater likelihood that a Democrat will be elected President this fall.

Confirm an Obama nominee:

This is the scenario some Republican Senators are probably secretly praying for, and it’s the most unlikely outcome. It entails somehow convincing the President to nominate somebody who would be seen as a consensus candidate – somebody progressive enough for Obama to nominate, but one harmless enough for Republicans to confirm.

The hitch in this plan: who the hell are we talking about? At the end of the day, they have to come up with a name – a specific human being. And the political parties are so utterly polarized at the moment that it is likely that this human being doesn’t exist. And even if he or she does exist, Senators like Ted Cruz — who is one of the few Republicans who might win from this situation even if the entire rest of his party loses – would invent reasons why this person is actually Satanic.

It is likely that anybody the President is willing to nominate would be — if for no other reason than by virtue of the nomination — unacceptable to a Republican Senate majority. And even if any given GOP Senator would privately be fine voting for the nominee, it would be out of fear of that Senator’s primary voters that they’d feel obligated to fight against the nomination.

As unlikely as this scenario is, it is the one with the least political damage done to the Republican nominee for President, but it could come at a cost to Republican Senators in contested primary elections in future years.


There may be other long-shot strategies Senate Republicans could discuss behind closed doors – like statutorily changing the number of Supreme Court justices from nine, to eight or seven (yes, Congress can do that) – all of which lead to the same place as the above scenarios – angering and motivating Democrats and contributing to a Democratic win for President. It should increasingly obvious to Senate Republicans that it doesn’t matter what they do, it is simply undeniable that Justice Scalia’s death could not have come at a worse time, and any reaction leaves them in a considerably weakened position than they were before, both legally and politically. Their options aren’t great.

Update: too serious for you? Fair enough. Here’s The Onion’s take.