I knew Justice Scalia somewhat and, though I believe he was wrong on most of the big issues the Supreme Court faced during his tenure, he was a pleasant person and a significant legal voice. While he will be missed by many for reasons personal and political, the timing of his departure may turn out to be fortuitous for the Democrats and the whole country.
Presidential candidates have rarely, if ever, given great attention to the vital issue of Supreme Court appointments. I cannot think of a single modern presidential election in which the future makeup of the Court played the central role it has now taken in this one.
While Scalia’s death would likely have brought attention to the issue without further controversy, Mitch McConnell’s absurd declaration that President Obama should not TRY to appoint a new justice has drawn sharper scrutiny to the Court.
Only a moment’s reflection is required to see the misstep the Republicans have made.
The G.O.P. response smacks of hypocrisy: the party of Constitutional originalism ignores the inconvenient parts of that document and, meanwhile, Rubio and Cruz remind the country that the reality they inhabit has a very different history from the one the rest of us live in. McConnell also seems to forget that Obama was democratically elected twice, which is more than many would say about Obama’s Republican predecessor.
The way things currently stand, it seems unlikely that the Senate will seriously consider an Obama nominee, and the Democrats are guaranteed to beat that drum all the way through the general election.
If the Senate made a show of CONSIDERING (at the very least) Obama’s nominee, the issue would likely remain secondary in the presidential campaign. By bringing it to prominence, however, the G.O.P. surely has helped the eventual Democratic nominee.
Whether or not it should, the Court holds key power over some of the most important social and political issues of the day: the Second Amendment, Citizen’s United, and abortion rights are just a few of the controversies that the Court will have to address in the very near future. Importantly, these are all issues that motivate many Democrats and which many moderates see from the more liberal perspective. Therefore, the Republican refusal to even consider a nominee likely contributes to the Democrats’ chances of winning the White House.
The next president will likely have a chance to make two or three more appointments to the Court. If the G.O.P.’s intransigent obstructionism costs them this year’s election, it will look like a terrible trade to have merely temporarily blocked Scalia’s successor: the Republican’s childish refusal to swallow a justice they find unsavory thus may give the Democrats the leverage they need to take an even larger majority of the Court during the next presidential term.
Scalia’s death and the Republicans’ knee-jerk political response appear to be a fortuitous development for Democrats in this most unusual Presidential election year.