Within literally hours of the announcement that Supreme Court Justice Antonin Scalia had died on a hunting trip in Texas, the Republicans in the Senate all but announced that they will not even consider an Obama-appointed replacement. Well, it didn’t take long for the White House to turn the tables on Mitch McConnell and his friends. President Obama announced that he will indeed nominate a replacement for Scalia in due course.
We’ve gotten used to seeing the GOP engage in obstructionism for obstructionism’s sake over the last seven years. But even by those standards, the Senate Republicans’ behavior in the wake of Scalia’s death can only be described as tacky and petty. Literally hours after Texas Governor Greg Abbott confirmed that Scalia was dead, Conn Carroll, the communications director for Senator Mike Lee, a member of the Senate Judiciary Committee, told us all we need to know about what the GOP has become of late. He actually suggested that if Obama nominates a replacement for Scalia, that nominee will be dead on arrival.
What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?
— Conn Carroll (@conncarroll) February 13, 2016
If anything this will put a full stop to all Obama judicial nominees going forward.
— Conn Carroll (@conncarroll) February 13, 2016
Admittedly, a lot of people–including myself–hoped that Carroll was just blowing smoke. But those hopes were quickly extinguished when McConnell himself weighed in.
Be careful what you wish for, guys. Obama wasted little time calling McConnell’s bluff, announcing that he will indeed nominate a replacement “in due course.” Watch here.
This gambit has the potential to explode in McConnell’s face–and not just for the obvious reason that it could potentially make Mark Kirk, Kelly Ayotte, Pat Toomey, and Ron Johnson one-term wonders. In an op-ed for The Washington Post, cultural historian Linda Hirshman notes that if a Supreme Court case results in a 4-4 tie, the lower court rulings remain unchanged. Since nine of the 13 Circuit Courts have majorities of Democratic-appointed judges, with few exceptions “the policy outcomes would be very similar to what they’d be if the court had a liberal majority.”
For instance, the Supremes stayed the EPA’s new rules on carbon emissions by a 5-4 vote. That ruling was initially appealed from the Democratic-dominated D. C. Circuit, which unanimously rejected the request for a stay. If Obama were to have the EPA simply issue new rules, there is very little chance that one of the four liberals will join the three conservatives and swing-vote Anthony Kennedy in granting the stay. Hirshman thinks this case, along with others, will put great pressure on the Senate Republicans to confirm a replacement for Scalia.
Obama, unlike McConnell and his GOP Senate colleagues, can read a calendar. As I write this on Sunday night, there are 340 days left in Obama’s term. If McConnell backs up his threat to sit on any replacement for Scalia, that seat will go unfilled for almost three times the previous record for a Supreme Court confirmation process. Louis Brandeis was nominated by Woodrow Wilson on January 29, 1916; he was finally confirmed 125 days later, on June 1, 1916.
It would be one thing if Scalia had died in June. But McConnell is threatening to leave a Supreme Court seat to be vacant for 25 days short of a calendar year. Someone is playing politics with the judiciary–and it definitely isn’t Obama.
