Upon hearing confirmation of Scalia’s death, the first thought I had was “Woah.”

After that, though, it was “Oh. Right. This is why I vote Republican.”

For president, anyway. Since joining the party in 1998, I have voted Democrat for nearly every type of office at least once. A couple times, I’ve voted for more Democrats than Republicans. But for president, the only time I didn’t vote for the Republican was 2012, which on the one hand I came to later regret and on the other I may end up doing again in 2016. And even then, I voted for Libertarian Gary Johnson in 2012 and may do so again in ’16. The only way I vote Hillary the Democratic nominee is if the Republicans nominate Trump. If they nominate Cruz I likely vote for Johnson again. But… maybe not. Scalia’s death reminded me of something: When it comes to judicial rulings, I am somewhat solidly in the Republican camp.

It’s not that I always agree with the conservatives and don’t want a balance, but I am reasonably more comfortable with the balance we have than the lack of balance that seems likely to occur with another Democratic appointee. My constitutional views lean towards the right when even my operational ones don’t. (If I’m being honest with myself, I think that Obergefell was wrongly decided it just so happens I was and am too elated by the outcome to care.

I don’t have a special love for Scalia. I thought he was brilliant when he was right, and especially loathsome when he was wrong. I prefer somewhere in between Anthony Kennedy and John Roberts. But wherever my preferences lay, if I prefer something other than a liberal justice, Republicans are the only ones to appoint them. Republican appointees drift and evolve, but for my entire life Democrat appointees circle the wagons. That could change on a liberal court, but I think there may be some hard dynamics at play to prevent it from happening.

Senate Majority Leader Mitch McConnell immediately announced that they wouldn’t be confirming any appointments for the duration of Obama’s tenure. I was asked whether I agree with this, and I do not. For two reasons.

First, from a good government perspective, Obama has almost another year left of his presidency and there may be more than enough time to get a nominee through if we assume good faith on all parties. There is a cutoff wherein I would understand a Senate Majority Leader simply saying “Nope! We’re not going to waste our time.” But I think we’re at least a couple months from that, maybe as many as four.

That being said, this is different in affectation but not effect. If the GOP had taken the Schumer 2007 position, there’s a good chance that the result would be absolutely, 100% the same. Had RBG died that year, I think the chances of a new nominee – almost any nominee – getting through would have been low. While the result would have been the same, though, it’s not quite the same. Though most likely disingenuously, Schumer left the door open for the possibility while McConnell simply declared A New Rule. There is a line between those two things. It’s not a line between “This is perfectly okay” and “These people are terrible” but it is a line nonetheless.

Court nominations have been on a downward trajectory for quite some time. We will probably not see another 90+ vote confirmation, as we did with Ruth Bader Ginsberg, again for quite some time. Ideology is increasingly considered a fair basis for voting someone down. Which, right or wrong, means it’s going to become the staunchly ideological/partisan issue that it somehow amazingly avoided from 1970 or so until last decade. This might mean, at some point in the future, vacancies of far greater duration than the one we’re looking at now. This moves the needle in that direction.

The second reason is more tactical: I think it’s a bad move. Given the particulars of the circumstance, they could probably get an unusually moderate Democratic appointee here. The next President of the United States is likely to be Hillary Clinton. She might win with her a Democratic senate. At that point, she can appoint anyone she wants and will have something of a mandate to so. So this maneuver increases the likelihood that instead of Obama appointing the new swing justice, that the court will move sufficiently to the left that the only hope is that Breyer becomes a swing justice.

That seems like wishful thinking to me, however, because Democratic appointees have discipline that Republican appointees lack.

So, assuming that this reaches its most likely conclusion: A Democratic administration with a wide degree of latitude in her appointment, what then?

Reflexively, I think everything changes. Some of my views on this might be influenced by status quo bias in that there has been a conservative majority my whole life and I don’t even know what a liberal majority would do. All I have to go on are the dissents, but it’s always easier to bark louder behind a fence. The rulings could well be to my liking. Or it could be a 5-4 rewriting of pretty much everything. Hard to say.

As mentioned, the next swing vote is likely Breyer. There used to be a minor divide on the left side of the court between Breyer and Souter towards the center and Stevens and Ginsberg on the edge, but now it seems to be 1-and-3 with Breyer alone. It’s… possible that this will entice Breyer towards less solidarity with his more liberal colleagues. Or maybe not. The question is why the leftward drift occurs with Republican appointees in ways that don’t seem to be the case the other way around.

One explanation is that going in to 2000, there were 7 Republican appointees and two Democratic ones and they shifted to fill out the balance. Either to keep things from going overboard, or the nature of the cases the court’s conservative majority accepted lent itself to cases where they’d side with the left and an internal dynamic took hold. If that’s the case, then Breyer very well may shift to the right and gain a Strange New Respect among conservatives. Another explanation is that it’s simply a manifestation of O’Sullivan’s Law, in which case, abandon all hope ye conservatives who enter. The court’s left flank is already further to the left than the right flank, and it’s about to get worse.

The Supreme Court Deathwatch remains a pretty good reason to have 18-year term limits. As I am sure you all know.

Category: Newsroom

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11 Responses to A Sudden Vacancy

  1. ppnl says:

    How would you have felt about Bork on the supreme court?

  2. Michael Drew says:

    The rubber hits the fan if a Democrat is elected and the GOP keeps the Senate, which I think is narrowly the most likely outcome.

    • trumwill says:

      If Trump or Cruz gets the nomination, which I think is considerably more likely than not, I think the GOP is toast in the Senate.

      They could lose the House.

      • Michael Drew says:

        Hmm. Not sure I think those negative coattails are that strong – yet,

        • Michael Drew says:

          – yet.

        • trumwill says:

          If I recall, they need to lose the House vote by about 7% for the House to be in jeopardy.

          Going to be hard to get Republicans to show up if it’s Trump. And a lot of the people who will show up *for* Trump won’t vote down ballot at all.

          With Cruz they likely keep the House (but still not a done deal).

          • trumwill says:

            Other than personal preference and disgust, this is why I think the rest of the party needs to have a third party candidate lined up in case it is Trump. It’ll give the presidency up, but thats lost anyway. It’ll give others someone to go vote for (and vote R down ballot)

  3. By 18 year terms, do mean a staggered thing where there’s a vacancy every two years? If so, I’m on board.

    • trumwill says:

      Yeah. Or if so inclined, you could make it 12 years and have appointments every year there isn’t a presidential election. I prefer 18, but either would be an improvement.

  4. Abel Keogh says:

    I’m old enough to remember when the court was supposed to be ideological neutral. But since it’s not, why is anyone surprised that Senators of both parties are playing politics with the nomination process.

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