Supreme Court

Republicans Shouldn't Fear a Supreme Court Fight

Republicans stand to lose more if they don't fight an Obama nomination


Republicans need to ask themselves a couple of questions before they battle over Barack Obama's eventual nominee to replace Justice Antonin Scalia on the Supreme Court. Is there any good reason to allow this president to change the ideological composition the Supreme Court radically? What is the political downside of denying him?

For one thing, despite the some wishful thinking in the media, Republicans don't need to freak out about the potential political blowback over "obstructionism." We've been hearing that the GOP would pay a steep price for its failure to rubber-stamp progressive reforms since the beginning of Obama's first term. Obamacare. Gun registration. Cap and trade. There would be hell to pay, they said, even as Democrats were losing the House, the Senate, more than 900 state legislator seats and plenty of governorships.

Since the presidential race is shaping up to be a disaster for Republicans (in part because of their perceived lack of fortitude), it's worth remembering that the executive office isn't everything—at least, until a progressive Supreme Court allows it to be everything. And because elections have consequences, Republicans have amassed enough votes to reject a nominee and free up some blue state candidates to take more conciliatory positions on SCOTUS, if needed.

Another theory postulates that by pre-emptively stonewalling all of Obama's nominees, Senate Majority Leader Mitch McConnell will be left without any ammunition to stop Hillary Clinton's pick. She will have a free hand. If, however, the Senate engages in a tactical surrender now (and I'm sure grassroots voters will love this idea), it will have a stronger case to stop a Clinton pick. Or the Senate could accept the moderate Obama selection. There are few things wrong with this proposition.

First, Clinton might lose.

Second, as it stands, the SCOTUS debate is really about a dozen political issues. Abortion. Citizens United. Guns. After years of gridlock and the administration's assertive use of executive power, all of our most contentious policy issues are tied up in the courts. Debating the EPA's unprecedented power grab or talking about gun rights being weakened by the court, tactically speaking, is a lot more productive than spending weeks trying to explain to America why Obama's telegenic, articulate, quasi-moderate nominee is unacceptable. Republicans would do better to make this a referendum on Obama.

Third, what's the difference? Obama's prospective "moderate" nominee would be indistinguishable from the prospective Clinton nominee on important cases. There is no chance of a defection from liberalism for either choice. There will be no conservative Souter, not even a Roberts. If Clinton or Sanders wins (and with every Trump success that prospects grows), the court is likely lost to conservatives, anyway. Why speed up the process?

In a press conference this week, Obama invented a whole bunch of imaginary constitutional duties for the Senate and struggled to rationalize his own hypocrisy on the subject. If Obama's performance is any indication, conservatives have a strong case to make on precedent. I mean, does anyone really buy the Democrats' newfound devotion to original intent?

Obama promised he would put forward someone "indisputably" qualified, intimating that there should be no more discussion. So he was asked, "Does that mean you'll nominate a moderate?" His answer: "No." Obama opposed Alito solely on ideological grounds—as Democrats did Bork and others—so there's no reason Republicans should not embrace the Schumer Doctrine and shut down all nominations.

Won't GOP stalling ignite huge voter turnout and engagement on the progressive left? To this point, the GOP seems more energized, in general. But progressives do rely heavily on the courts to institute change. Wouldn't conservatives be equally concerned about the unelected court undoing years of progress? I imagine they would. Democrats would be facing the status quo; Republicans, a potentially devastating political event.

A 2015 CNN poll found that 37 percent of Americans thought the Supreme Court was already too liberal—that highest percentage measured since the network began polling the question in 1993. Only 20 percent felt like the court was too conservative, and 40 percent found it just right. So in other words, 77 percent would be happy with the status quo—a 4-4 court with a convincible moderate making decisions.

But even if nothing above were true, Republicans would still have no choice. The most consequential political upside for a GOP to fight on SCOTUS is this: The party won't survive if it doesn't fight. Not in its present form. There's simply no way those you can accuse the president of abusing and ignoring the Constitution for seven years and then hand him the Supreme Court for the next 20. Not in the midst of a national election featuring an insurgent front-runner whose case is predicated on the notion that the party is led by weaklings. If you do, you might as well pack it in.


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  1. Just ignore Obama. I hear he might go away in early 2017.

    1. He’ll run out of president-power, but I doubt he’ll go away. Indeed, I suspect he will get louder.

      1. The thought of Obama being able to speak without even having to possibly worry about the decorum of his office or that he might need to work with someone he’s criticizing.

        Honestly, if he had a shred of humility he’d get up every day and say a little prayer thanking Odin that Bush was perfectly happy to return to his ranch and paint. An activist Dubya who wanted to hold on to his moment in the spot-light could have spent a lot of time drawing some uncomfortable-for-Obama parallels in their presidencies.

        1. if he had a shred of humility

          Aye, but there’s the rub…

          1. Precisely. This is why I never believed the “Obama is a secret Muslim” line. The man clearly doesn’t worship anything except his own ego.

  2. I agreed with this when I read it yesterday somewhere else.

    Mostly love David Harsanyi.

  3. Generally agree with this. An Obama nominee means an end to free speech, the Second Amendment, property rights and an endorsement of numerous lawless power grabs.

    1. Nevada Senator who started squishing on this was plaintively wondering if maybe the pick could be a Nevadan.

      Just how pandering do you have to get?

      “Sure, we got a complete progressive who just banned free speech, but it was a Nevadan progressive!”

      1. This shit right here is why I fully expect the Stupid Party to fold.

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  5. Totally agree. This next pick is absolutely crucial. Obama has packed the court with Progressive judges who disregard the Constitution and have no problems with cynically interpreting law to propel the Progressive agenda, to the detriment of individual rights, justice, and the cause of liberty. If the Republicans cede this choice to the President they will find themselves playing legislative catch-up for the next twenty years.

    1. Protecting the Court from going majority proggie is utterly imperative. This is absolutely the hill to die on.

      Scalia himself has previously said that, given the modern Supreme Court’s tendencies to make up rights and change the Constitution at will, the nominations process should be a contentious and viciously fought battle. We no longer bother trying to amend the Constitution according to the mechanism set out in the document. Instead, we just put five justices on the bench who change it themselves, rather than interpreting the words on the paper.

  6. “The most consequential political upside for a GOP to fight on SCOTUS is this: The party won’t survive if it doesn’t fight. Not in its present form. There’s simply no way . . . you can accuse the president of abusing and ignoring the Constitution for seven years and then hand him the Supreme Court for the next 20.”

    It will be a political calculation.

    I don’t think people appreciate how important it is that Cruz is on the Senate Judiciary Committee.

    If Cruz is beating Trump in the primaries, and, according to his campaign, it’s better for his general election chances if the Republicans are not seen as obstructionist, hateful, and intolerant (because of confirmation hearings in which Cruz participates), then the other Republicans on the Senate Judiciary Committee will almost certainly defer to Cruz’s influence and interests. It doesn’t help any Republican to hamstring the front runner for President.

    On the other hand, if Cruz is still fighting to win the primary when the hearing happens, it’s a whole different ballgame.

  7. The only people who will be angry about the GOP rolling over are hard core Progs who vote Democrat anyway. And anyone who is motivated to vote based on a Supreme Court pick is likely to be motivated regardless. I think the risks of the fight causing some huge Prog turnout are way overblown.

    1. The mainstream media will be angry.

      And for some reason, some squishy GOP senator types just love to suck up to the media.

      (The media is not so well-loved anymore, so I don’t get it…wait I’m betting its just because these guys love to see their name in print.)

      1. And for some reason, some squishy GOP senator types just love to suck up to the media.

        They seem to believe that if they do things the media like, they won’t be immediately vilified and burned in effigy the next time they do something conservative.

        1. When will they do something conservative?

  8. It’s important to remember that the Republicans have a large number of Senate races this cycle, and they’re fighting like hell to keep control of the Senate, too.

    I’d love to think the Republicans are looking at the heart and soul of what it means to be a Republican and will stand on those principles taking the long view–the current election cycle be damned. But if the crucial candidates forfeit a shot at controlling both the Senate and the White House this cycle to do that, that would be some really unconventional thinking.

    What’s the point of surviving ideologically long term if you have to forfeit control the White House and the Senate now? So you can control the White House and Senate in the future?

    Whether the nominee will be confirmed will be a function of the political calculation at the time of the hearing.

    1. If you want to drive turnout for your Senate candidates, holding out would seem to be the wiser choice than collapsing like jelly.

      1. Elections are determined by swing voters.

        Not the true believers.

        The true believers are comin’ out to vote against Bernie or Hildebeast anyway.

        1. Elections are determined by swing voters.

          No they are not. Romney won swing voters by something like 12 points in 2012. Elections were once determined by swing voters. They are now determined by which side gets more of its base to turn out.

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    1. Much like this comment tunneled from another post to this one.

  11. Wow man I never thought about it like that.

  12. I’d like to see the GOPs shortlist of candidates.

  13. Wow, a reason writer who doesn’t ostentatiously turn up his nose at “both sides!”

    My one piece of advice to the Republicans is that they say something like this:

    “Sure, if Obama nominates a suitable candidate we’d vote for him. To us, suitable means supporting the whole Bill of Rights – including the First, Second and Tenth Amendments and the Takings Clause – defending the rights of the unborn and protecting true marriage. If Obama’s nominee shows clearly and unambiguously that (s)he will do these things, we’ll confirm. The same goes for Obama’s successor, whoever that may be.”

    1. Excellent strategy.

  14. RE: Republicans Shouldn’t Fear a Supreme Court Fight

    Neither should the democrats.
    Once put on the lifetime appointment of a Supreme Court justice, they all revert to the age old legal axiom of “Fuck you, that’s why!’
    Its hard to argue against that kind of legal reasoning.

  15. So basically, the title and the article are saying that if you happen to be one of those liberty-loving types, you were fucked before Scalia died, you’re fucked while Obama is in office and you’re fucked after Obama leaves the office to whatever shit bag TEAM member takes the place of Chocolate Jesus.

    See, the article could’ve been a lot shorter.

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  18. The Republicans fear any fight. They do not fight when they can run, they do not run when they can crawl.

    It’s all an act anyway. The Republicans have prospered using their self created image of being cowards thereby being able to pretend that they don’t actually favor more government but are simply afraid to fight the irresistible combined forces of the media, academia and the all powerful Democrat – Government Employee Complex.

    The Republicans are the Dodo Bird of politics. They have been extinct for years. It’s only now, thanks to Trump, that this truth has become obvious. Obama will nominate a black, female law professor who has never even been in courtroom and is known for extreme leftist views. Then the Republicans will say “Thank God we can pretend that we’re afraid of looking like misogynistic racists and we can put her on the court”.

    As usual, the candidate will pass with all of the Democrats and just enough Republicans in safe seats to carry the day. Among the rest of the Republicans there will be “great lamentations and gnashing of teeth” along with cries of “It wasn’t my fault!”.

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