President Obama ordered flags to fly at half-staff across the United States until Antonin Scalia, the longest-serving justice, is laid to rest. (AFP/Brendan Smialowski)
Why blocking Obama’s pick to replace Scalia could cost Republicans their Senate majority
James Hohmann
THE BIG IDEA:
Mitch McConnell has decided to wager the Republican majority in the Senate on blocking Barack Obama’s pick for the Supreme Court.
It’s a bold and understandable gambit designed to prevent a leftward lurch in jurisprudence after Antonin Scalia’s unexpected death this weekend, but it could backfire badly.
Assuming the president picks a Hispanic, African American or Asian American – bonus points if she’s a woman – this could be exactly what Democrats need to re-activate the Obama coalition that fueled his victories in 2008 and 2012. Even if he does not go with a minority candidate, the cases on the docket will galvanize voters who are traditionally less likely to turn out.
Last night in Las Vegas, for example, Hillary Clinton said it would be nakedly partisan and unconscionable if Republicans don’t give a hearing to the president’s nominee. And she emphasized the immigration case that the justices recently agreed to hear. “Because of his passing, there will be most likely a tie, four to four, on important issues that affect so many people in our country,” the Democratic front-runner said. “And the most important is the decision about President Obama’s actions under DACA and DAPA. If there is no new justice appointed, then as with other cases before the court, the decision that was decided will stay in place. And that was a bad decision.”
Keep in mind that a quarter of Nevada’s population is Hispanic. Beyond being a battleground in the presidential race, there is also an open Senate race to succeed Harry Reid. Democrats will nominate a Latina and Republicans will nominate a white guy who is already in Congress.
Or take abortion rights. Marco Rubio is against abortion even in cases of rape and incest. For women, the prospect of Roe vs. Wade being overturned just became much more real. “When I’m president of the United States, I’ll nominate someone like Justice Scalia,” the Florida senator declared on the Sunday shows.
And environmentalists just this month saw the court put a stay on Obama’s Clean Power Plan. The next justice will be the swing vote who determines the future of coal in the United States. Though these sorts of cases mean that business interests will pour more money than ever into 2016 races, it could also help Democrats attract crucial suburban women who might lean to the right but worry about global warming.
More broadly, this could also undermine efforts by Senate Republicans to show that they are capable of governing and not just “the party of no.” Make no mistake: The upper chamber will grind to a standstill if the GOP follows through on this threat. Democrats who are inclined to work with them promise to stop doing so if Republicans play hardball.
McConnell
(Photo by Alex Wong/Getty Images)
(Photo by Alex Wong/Getty Images)
Sen. Mitch McConnell: "The single most important thing we want to achieve is for President Obama to be a one-term president."
Having failed in "the single most important thing," what's your job now Mitch?
-- Ultimately, though, there is not really anything Democrats can do procedurally to force Judiciary Committee Chairman Chuck Grassley to hold a hearing on Obama’s nominee. The only lever they have is public pressure.
The most potent pressure points are the seven GOP incumbents who are up for reelection this year in states Obama carried in 2012. New Hampshire’s Kelly Ayotte and Wisconsin’s Ron Johnson publicly came out in favor of obstruction yesterday. The others are holding their cards close to the vest for right now: Ohio’s Rob Portman praised Scalia but would not address the core issue. Spokesmen for Pennsylvania’s Pat Toomey declined to comment and Illinois’ Mark Kirk ignored inquiries, per CNN.
Pay particularly close attention to Portman, who is already vulnerable and could be wiped out if African Americans make up the same percentage of the electorate in 2016 as they did in 2012.They are likelier to vote if they believe he is disrespecting the first black president.
“I intend to continue to talk about this until the polls close,” former Ohio Gov. Ted Strickland, the Democratic candidate against Portman, told my colleague Paul Kane yesterday. “Senator Portman, who has your allegiance, your country or your party leaders? … The people have spoken, on two occasions,” he added, referring to Obama’s 2008 and 2012 victories.
Joe Biden and Ted Strickland at a Dairy Queen in 2012 in Nelsonville, Ohio. (AP Photo/Carolyn Kaster)
-- Conventional wisdom is that whichever party wins the White House in November will control the Senate. That’s obviously the primary factor, but we’re not convinced it will be determinative.Democrats need to pick up four seats to win the Senate, and it’s conceivable they could get those from states that Clinton would probably carry even if she loses the Electoral College. In 2014, it’s worth recalling, Democrats lost each of the seven seats they had to defend in states Mitt Romney had carried two years earlier.
And remember that this won’t be happening in a vacuum: If Obama knows for sure that his pick is not going to get formally considered, he can go with someone who gives his party maximum political leverage to bludgeon these Republican incumbents.Monica Márquez is the first Latina and first openly gay justice on the Supreme Court in Colorado, which will again be a crucial swing state. Attorney General Loretta Lynch is an African American woman. Lucy Koh is the first Asian American district judge in the Northern District of California. He could also go with someone who was previously confirmed unanimously by the Senate to give additional rhetorical heft to his attacks that Republicans are being hypocrites.
Attorney General Loretta E. Lynch (Photo by Nikki Kahn/The Washington Post)
-- What’s the Republican political calculus? Blocking judges historically motivates their base – including donors and the U.S. Chamber – more than it does liberals. And they don’t think independents will really care all that much. It will just sound like more Washington noise. McConnell, not a favorite of the grassroots, also needs to keep his own base ginned up. Amidst a presidential primary, it is untenable for Republicans to look like rubber stamps for Obama.
Chris Christie offers a cautionary tale for GOP members. His bubble in New Hampshire was punctured when opponents began attacking him for offering support of Sonia Sotomayor while he was running for governor of New Jersey in 2008. Christie denied making comments he had made. Allies and rivals agree that the Sotomayor hit was a turning point for his campaign. Republicans who fear primary challenges, such as Alabama’s Richard Shelby, are never going to back any Obama nominee.
Most smart Republicans in D.C. still believe either Trump or Cruz would lose a general election. Their hope is that a Supreme Court vacancy might help galvanize conservative volunteers to go do work for endangered Senate incumbents.
Harry Reid (File)
-- To be sure, not every Democrat has a clean nose on this: Harry Reid shortsightedly invoked the nuclear option in 2013, which allows non-Supreme court judges to be approved by a simple majority. This incensed Republicans and only accelerated the upper chamber’s decline to be more like the unruly House.
Lindsey Graham, one of just two current GOP senators who voted to confirm Elena Kagan during Obama’s first term, tells The Post that Reid poisoned the well by going nuclear. “I voted for every Supreme Court justice nominated by Bush and Obama. I believe the Senate should be deferential to qualified picks,” the South Carolina senator said. “But I did tell Harry Reid and the president that the consequence of changing the rules in the Senate to pack the court will come back to haunt them.”
George F. Will also zeroes in on Reid’s use of the nuclear option in his column today, which he describes as “institutional vandalism.”He frames the battle this way: “Scalia’s death will enkindle a debate missing from this year’s presidential campaign, a debate discomfiting for some conservatives: Do they want a passive court that is deferential to legislative majorities and to presidents who claim untrammeled powers deriving from national majorities? Or do they want a court actively engaged in defending liberty’s borders against unjustified encroachments by majorities?”
-- The big question right now: Will there even be a confirmation hearing?
McConnell’s Saturday night statement declaring that the vacancy should be filled by the next president did not rule out the possibility of a confirmation hearing or floor time to consider whoever the president picks.
That might be the more politically astute play, since Republicans could slow walk the vetting, trickle out negative revelations about the nominee to right-wing media outlets and then ultimately vote to reject the nominee.
Having hearings could give some cover to purple state Republicans to say they are doing their jobs. “If the Republican leadership refuses to even hold a hearing, I think that is going to guarantee they're going to lose control of the Senate," said Patrick Leahy, the ranking Democrat on the Judiciary Committee.
Plus, even if Obama’s pick gets past the Judiciary Committee, they will be hard pressed to get confirmed by the full Senate. Fourteen Republicans would need to come out against Cruz’s promised filibuster. During Obama’s first term, when Democrats held a near super-majority, only nine Republicans voted for Sotomayor and five voted for Kagan.
Given that the Senate is on a President’s Day recess, White House spokesman Eric Schultz said Obama will not rush out an announcement this week. This gives both sides a few days to poll and focus group their options.
A former top adviser to the president says the GOP could have been savvier:
-- Another wildcard: How will the press cover this? One of the mainstream media’s problems is a really short attention span. What is unknowable today is whether this vacancy is a two-week story, a two-month story or a 10-month story? Also, is the narrative that Republicans are creating an unprecedented Constitutional crisis? Or is it played as a boring he-said, he-said storyline?
Democrats note that Obama still has the bully pulpit, so he can come up with creative ways to drive news coverage about the GOP’s failure to bring his nominee up for a vote. The party can also use paid media to target the vulnerable Republican incumbents.
-- For both sides, it really is difficult to overstate the stakes: Scalia left an indelible mark on both the court and our country for nearly three decades, and his replacement could do the same. Ironically, if Clinton wins and Democrats retake the Senate after McConnell spends the year taking heat, she will have a mandate to put the most progressive justice imaginable on the bench. And Republicans will have no real grounds to oppose her. For McConnell, right now, that’s a risk worth taking.
Antonin Scalia in 2010 (Reuters/Kevin Lamarque)
-- MORE SCALIA STORY LINES:
THE BUZZ AT THE CAPITOL: “Some hopeful Democrats now see the nomination of a sitting senator as the best chance Obama has to seat another justice on the Supreme Court before leaving office,” Juliet Eilperin and Paul Kane report. “There are several Senate Democrats who fit that description, including Amy Klobuchar (Minn.), Sheldon Whitehouse (R.I.), Christopher A. Coons (Del.) and Richard J. Durbin (Ill.). But individuals who have spoken with the White House about the nomination process … said the president is interested in a candidate who is young enough to serve an extended period of time. Only two of those senators — Klobuchar, at 55, and Coons, at 52 — are younger than 60, the age Justice Ruth Bader Ginsburg was when she was nominated.”
… But we hear that POTUS is more likely to go with someone who has already been confirmed and vetted. “Although Obama has installed fewer federal appellate judges than either Presidents Clinton or George W. Bush, he has put enough nominees on the bench that Democratic appointees are in the majority on nine of the nation’s 13 circuit courts,” Juliet and Paul note. “In that group, the 9th Circuit’s Paul J. Watford, a 48-year-old African American, and Sri Srinivasan, a 48-year-old judge on U.S. Court of Appeals for the District of Columbia Circuit who would be the first South-Asian American on the Supreme Court, would be the leading contenders. Others include the D.C. Circuit’s Patricia Ann Millett, 52, and Jane L. Kelly, 51, a judge on the 8th Circuit who was confirmed 96 to 0” with the support of Grassley.
-- What does the loss of Scalia mean for cases currently on the docket? “In the short term, conservatives could still prevail on many of the cases before the court this term. But the wins could come in the form of tie votes that preserve the status quo rather than provide precedents that will shape the future,” writes Robert Barnes, our Supreme Court correspondent.
A big break for public employee unions: “At oral arguments, the court seemed prepared to hand a significant defeat to organized labor and side with a group of California teachers who claim that their free-speech rights are violated when they are forced to pay dues to the state’s teachers union. The court’s conservatives — Scalia included — appeared ready to junk a 40-year-old precedent that allows unions to collect an ‘agency fee’ from nonmembers to support collective-bargaining activities for members and nonmembers alike. But the U.S. Court of Appeals for the 9th Circuit, citing that precedent, had ruled for the union. And with the Supreme Court’s liberals seemingly united in upholding the precedent, a 4-to-4 vote would mean the union victory would stand.”
The law could be interpreted differently in different regions: “For instance, a Texas law that imposes new restrictions on abortion providers was found constitutional by a panel of the U.S. Court of Appeals for the 5th Circuit. A 4-to-4 tie would uphold that finding. But a similar law in Wisconsin was struck down and would be unaffected by the court’s tie in the Texas case.”
Barnes adds that, if Republican leaders hold firm, it will also affect which cases the justices choose to take up when the next term starts in October. (Read a breakdown of how four cases will likely be impacted here.)
This is the room where Justice Scalia was found dead. (Photo by Matthew Busch/Getty Images)
-- Chaos, confusion and conflicting reports in the hours after Scalia’s death, which happened during a blue quail hunting trip.From Lana Straub, Eva Ruth Moravec, Sari Horwitz and Jerry Markon: After his body was discovered, it took hours for authorities in remote West Texas to find a justice of the peace. “When they did, she pronounced Scalia dead of natural causes without seeing the body and decided not to order an autopsy. A second justice of the peace, who was called but couldn’t get to Scalia’s body in time, said she would have ordered an autopsy. ‘If it had been me . . . I would want to know,’ Juanita Bishop, a justice of the peace in Presidio, Tex., told The Washington Post in an interview Sunday.”
Some details of his final hours at the Cibolo Creek Ranch, a luxury compound less than an hour from the Mexican border, remain opaque: “As late as Sunday afternoon, there were conflicting reports about whether an autopsy would be performed, though officials later said Scalia’s body was being embalmed and there would be no autopsy. One report, by WFAA-TV in Dallas, said the death certificate would show the cause of the death was a heart attack.”
The Texas flag flies at the entrance to the Cibolo Creek Ranch yesterday.
(Photo by Matthew Busch/Getty Images)
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