Justice Antonin Scalia, conservative stalwart and constitutional originalist, is dead.
Which is why the complete rowdiness of the latest Republican debate is all the more indicative of the deterioration of the Grand Old Party. The Supreme Court of the United States is in danger of having a vacant seat for 11 months and yet the main sound bite from Saturday’s debate was John Kasich’s “Jeez, oh man.” When the Republican Party should have been uniting, it instead became more fractured, more febrile, than ever.
A few things, then. First: Yes, it is probably in violation of the spirit of the Constitution to promise to obstruct any Supreme Court nomination, as the Republicans have done. But let’s not pretend that Senate Democrats would do any differently if they were in Mitch McConnell et al.’s position and thought they could get away with it.
Second: Replacing Scalia is not the war. The war is the presidential and legislative elections in November. Why? Because Scalia was not the only aging justice on the Supreme Court. By 2017, Ruth Bader Ginsberg will be almost 84, Anthony Kennedy will be 80 and Stephen Breyer will be 78. Any one, if not more, of those three will be likely to step down or pass away before the 2020 election. Even if Obama is able to get his nomination confirmed, the next president could be responsible for remaking the Court’s ideology for the foreseeable future.
This is especially significant for Democrats, who have an opportunity that has not been available to them in decades. The Court has leant consistently conservative since the 1970s. Were the Senate and executive branch to both fall to the Democrats in 2016, the possibility that they could replace Scalia, Breyer and Ginsberg in one fell swoop is one that must have party strategists salivating.
Third: Victory in 2016 now hinges on each party’s ability to galvanise its voter base and get them to the booths. The Party that is best able to control the narrative and capitalise on the fight in Washington over Scalia’s now vacant seat will be the one handed the reigns come Election Day. This necessity to mobilise is again more true for Democrats than Republicans. Republican voters are whiter, older and richer – that is, of demographics already likelier to vote.
This is why John Cassidy, columnist at The New Yorker, writes, “If you were a Democratic strategist trying to maximise turnout, what would you most like to see? One possibility, surely, is the prospect of the election being transformed into a referendum on the President versus the do- nothing Republican Congress,” as he argues would occur if the Republican leadership is utterly intransient contra whomever the President nominates.
I am much less sure that explicitly pitching the election as a party struggle, instead of about the issues themselves, is necessarily the Democrats’ winning strategy. Cassidy seems to forget that Obama is tremendously unpopular among most Republicans. And indeed, the battle over the Supreme Court appears to me to be as likely to energise the Republican base as it is the Democratic one. Conservatives in America have long felt that Democrats rule by decree, for instance on gay marriage, and the idea of social values and law being determined by a cloistered, liberal (read: authoritarian) group of Harvard Law School graduates is probably a terrifying one for many.
Yet I do think that Scalia’s death is an advantage for Democrats – not because the battle is inherently an easy one, but because the Democratic establishment is much stronger at present than the Republican one. Sanders might have elites spooked and Clinton, despite all her strengths and expertise, is considered by many (however unfairly) to be a disappointing, dishonest candidate. But for those who dislike her and would therefore have considered staying home in a regular election year, the possibility of Republicans seizing control of the judiciary must be a greater evil than another Clinton presidency. Hillary is still the clear favourite to win the nomination and rightly so – pragmatism dictates that she would fare better in a general election.
Meanwhile the Republican field remains in a state of almost risible disarray. What a bizarre world: the GOP’s frontrunner is a man who said that Planned Parenthood actually does do some wonderful things and claimed aloud that President Bush was responsible for the Iraq War. Donald Trump has succeeded by exploiting class, not ideological, division, revealing a new cleavage in a party that already was threatening to split apart at the seams.
And the Supreme Court is a frontier along which new fault lines could appear, as, for example, the puritanical Ted Cruz tries to convince the electorate that he and he alone is truly capable of fighting the liberal cabal. So unless the base coalesces around the probably-too-moderate Kasich, Tea Party darling Marco Rubio or Jeb ‘Jeb!’ Bush immediately, Republican leaders might soon be too late to stop Trump’s hostile takeover of their terrain or a Cruz ascendancy.
Of course, as I wrote February 3, we seem to be in a world where common sense defies us. The punditry has fared predictably poorly; the polling geeks at FiveThirtyEight, who so successfully predicted the last two election cycles, have done no better. Who can say that Republicans will not come back down to earth to vote for someone electable? For the sake of American progress: let us hope not.