15 February 2016

Obama’s full court press


When a monarch dies, a nation usually undergoes some profound change, even if it’s only in how they think of themselves. Here in the UK, we recognise familiar epochs: the Edwardian period being very different in character to the Victorian. We might not think of ourselves as the ‘New Elizabethans’ but such things do define us in that coronations tend to be once-in-a-lifetime events. They are moments of reflection, of renewal, and sometimes of upheaval.

America knows no such segmentation of its history. They had the Nixon Years as they also had the Kennedy Years but neither really defined the nation in terms of its fashions, tastes, or philosophy. It’s really in the death of a Supreme Court justice that America perhaps comes closest to losing a monarch. Though we rarely talk about the men and women chosen to sit on America’s highest court, they are the people whose work and words define their eras.

The passing of Antonin Scalia quite possibly brings an end to a period in American history defined by conservative rulings. His name has figured prominently in America’s history since Reagan nominated him for the Supreme Court which he joined in 1986. Scalia was the arch-conservative whose name appeared in the jokes on the nightly talk shows or in the background rumble of cop shows and courtroom TV. Scalia was the voice of orthodoxy when it came to abortion, same-sex relationships, and, of course, the much contested ruling of Citizens United in 2010, which allowed non-profit corporations to spend unlimited amounts in elections.

His passing or retirement would always be a significant event but, the former coming now, it provokes a rare conjunction. The Supreme Court is finely balanced between liberals and conservatives at the very time when America is selecting a new president. Scalia’s death could well mark a watershed moment in American history. It is one of those rare chances when America can either redefine itself as a more liberal nation or confirm its status as a country set in its conservative traditions.

Scalia’s death leaves the Supreme Court with four justices nominated by Republicans (Kennedy, Thomas, Roberts, and Alito) and four nominated by Democrats (Ginsburg, Breyer, Sotomayor, and Kagan). Scalia had previously tipped the balance, meaning that the court has largely been dominated by conservative rulings. The choice of the next Supreme Court justice is certain to tip the balance once more. There is little doubt that President Obama will nominate a successor and, if he chooses to play a full court press, he will make a choice that is unpalatable to the Republicans.

He will do so because the incentive presented to the Democrats is as great as the nightmare now faced by Republicans. Senate Republicans now find themselves considering two equally unpleasant options. They will not wish to allow Obama to appoint his choice of justice to the Supreme Court yet any attempts to block him will blight the candidacy of whoever emerges victorious with the Republican nomination. That’s why Obama is in a position of strength. The President Obama wins whether the Senate confirms his nomination or drags out the process. The more painful he makes it for the Republicans, the better chance that his legacy will be preserved by a Democrat successor in the White House.

The Republican-dominated Senate will attempt to delay the nomination process because they’ll hope to leave the appointment to the new president come January. Already the Republican nominees have expressed their opinion that the decision should be left until then, with Ted Cruz (himself once a Supreme Court clerk) even arguing that it would go against established conventions by confirming a new Supreme Court justice in an election year. Yet if they were capable of being far seeing, the Republicans might realise that they’d be best served by allowing Obama his choice of nomination.

Republicans will, of course, detest the idea of capitulation but the alternative might be even more unpalatable. If Republicans block the vote, Democrats will call foul given President Obama’s Constitutional right to nominate a Supreme Court justice. Hillary Clinton or Bernie Sanders would then promise to rectify the ‘wrong’ done to Obama by affirming his choice of justice. It would be a powerful message to liberal sections of the electorate made aware of this rare chance to alter America from its roots. After all: Supreme Court justices are the ultimate custodians of the Constitution. Their interpretations of the law are transmitted throughout America’s legal system but, also, into the wider culture. Democrats could turn the presidential election into a referendum deciding the political makeup of the Supreme Court. That might well be a powerful incentive to voters in a Presidential election when candidates might otherwise be struggling to motivate their support.

From the Republican side, they need to fashion a strategy that stops this message from gaining momentum. Whilst they will feel the battle to prevent Obama’s Supreme Court nominee is unavoidable, in a strategic sense, it is one they should perhaps accept as already lost. The next president will in all likelihood be in a position to nominate more than one Supreme Court justice. Republicans might be better off conceding this battle in the hope that a Republican president will be able to rebalance the court in future years. If they choose to fight Obama now, even if they win, their obstructionism could well help elect Clinton or Sanders. Needless to say, a Democrat in the White House would confirm Obama’s nominee as well make their own for the next four years and perhaps beyond. One of those nominations might well be Obama himself, already spoken of as a potential member of the Supreme Court. There is already precedent, with William Taft becoming Chief Justice after serving one term as president.

The prospect of the relatively young and liberal Obama presented with a place for life on the Supreme Court magnifies the pain the Republicans might well feel come the end of the year. From the perspective of February, with the South Carolina primary not even decided but currently polling heavily in favour of Donald Trump, it’s hard to see how the Republicans emerge from this in a position of strength.

David Waywell writes and cartoons at The Spine.