If Justice
Antonin Scalia were in his grave yet, which he isn’t, he’d be rolling over in
it with a combination of laughter and judicial outrage at Republicans trying to
create a wholly new constitutional theory (“Presidents shall nominate…judges of
the Supreme Court except during the 4th year of their 2nd term”)
in order to ensure his seat is filled with another strict constructionist and
originalist who abhors novel constitutional theories and believes the Constitution is to be followed to
the letter.
But even more
interesting than the irony of using theories Scalia would personally hate in
order to preserve his legacy, is the prospect of the complex series of moves,
countermoves and “game theory” tactics we are likely to see over the next few
months as both Republicans and Democrats begin to analyze their choices for
filling Scalia’s seat.
The “not on my
watch” position that many Republicans have announced about not even considering
an Obama nomination to fill the seat will likely turn out to be too rigid
and simplistic once the GOP
leadership (if there is such a thing anymore) begins to consider its options
under various scenarios.
The Democrats
have options too, along with the advantage of being able to make the first move.
Obama can decide what sort of candidate to nominate, which will determine what
sort of response to expect from the Republicans. Here are some of the
possibilities:
1.
Suppose Obama decides to appoint a rock-solid,
down-the-middle, moderate justice. Neither side would get the ideologue they
prefer, but the Supreme Court would become a more centrist, consensus-prone
institution.
a.
This could be attractive to BOTH sides if they
anticipate a close election. If Republicans and Democrats both feel they might
LOSE in November, this would hedge their bet and prevent what either side would
consider the disaster of having their opponents control the process and name
whomever they want.
b.
Especially if the Republicans fear that if they
lose the presidency they might lose the Senate along with it, then this choice
would prevent an out-and-out liberal being jammed down their throats in 2017.
c.
It would also allow those Republican Senators in
hotly contested states to differentiate themselves from the Tea Party zealots
and demonstrate their reasonableness and willingness to compromise.
2.
But the “give up” for both sides is substantial
if they believe they have a good chance of winning, including the Senate. Then
taking the “safe” road in 2016 means blowing their chance to have a better
candidate – however defined – once their new president is in office.
3.
But that is just for starters. Suppose the
Republicans end up with Trump as their candidate? Will the Republican
establishment decide they would prefer a safer more predictable Supreme Court
candidate, even a moderate they would have to compromise with the Democrats on,
than to roll the dice and find out next year what Trump’s idea of a suitable
candidate might be?
4.
Meanwhile, if the Democrats conclude that any
Supreme Court nominee Obama comes up with, no matter how moderate, is a lost
cause, they may want to go ahead and put up a particularly attractive one
anyway, with the express intention of making the GOP-controlled Senate’s
intransigence itself a campaign issue. The Democrats would paint a picture of
Republican plots to take over the Court, turn back history and return to a day
of “back alley abortions” and other horrors if they regain the presidency and
the court-appointing power.
This is just a
sample of scenarios that may evolve as the election year progresses. One thing
we can be sure of. The games have just begun.
