The stunning death of Supreme Court Associate Justice Antonin Scalia continues to send shockwaves across the country. The Court’s most conservative jurist — known for his intellectual prowess, extraordinary articulateness, great sense of humor, and biting opinions (particularly when in the minority) — was the anchor of many opinions which (1) pleased strict constructionist conservatives who believed the Constitution should only be interpreted literally and (2) infuriated liberals who saw the Constitution as a “living, breathing, evolving” document that had to be relevant to an ever-changing world.
Despite knowing President Barack Obama has the right and obligation to nominate Scalia’s successor, all the Republican Presidential candidates and many others on that side of the aisle have called for the President to defer nominating anyone for a year so the next President can make the selection.
While any President, regardless of party affiliation, would be unlikely to wait, getting the Court to its full strength of nine Justices for the new term beginning in the Fall of 2016, should be a priority for the country so decisions — rather than 4-4 ties — can be made. Nevertheless, because Republicans are cognizant of what is at stake, they do not want to give Obama the opportunity to steer the country sharply to the Left.
At the same time, everyone knows one of the responsibilities and rights of the Presidency is the authority to nominate federal judges — including Supreme Court Justices. For many years, both parties respected this right and the concept “Elections have consequences.” That bipartisan perspective rarely exists today. (See my interviews with Supreme Court Justices Stephen Breyer, Ruth Bader Ginsburg, and Sandra Day O’Connor, at www.HarberTV.com/SCOTUS.)
Scalia was nominated by President Ronald Reagan and was confirmed unanimously by the U.S. Senate in 1986 by a vote of 98-0. Who can imagine such a unanimous vote for any nominee today?
A nomination right now would have extraordinary political implications. It will mobilize the Right as Second Amendment supporters, Pro-Life forces, and unrestricted political campaign spending advocates join others in an effort to elect a Republican President to prevent a change from the Court’s current 5-4 conservative majority to a 5-4 liberal majority. Those on the Right fear this would open the floodgates for dramatic change.
The Left simultaneously will mobilize as it attempts to exploit a historical opportunity for change which has not been available for several decades. Similar coalitions will seek to elect a Democratic President to stop what they believe has been the regression of the country in recent decades.
Republicans in control of the Senate could delay consideration of any Obama nomination for months. Hearings could be postponed and then dragged out. The Senate could vote down one or two nominees — forcing Obama to restart the process.
If Obama nominated a candidate representing a political base critical to the 2016 General Election, he might be able to turn the tables because Republicans — by rejecting that nominee — could alienate a significant element of the electorate in a very competitive election year. This could cost Republicans U.S. Senate seats or even the Presidency.
Nevertheless, anyone Obama nominates at first will be attacked by the Right no matter how impressive his or her credentials are. That nomination will fail. Obama could be strategic and first nominate a very liberal candidate who would serve as a sacrificial lamb. Then the President would be positioned to put forward a moderate but still left-leaning candidate who might be found suitable by the 60 Senators needed to confirm a nominee.
However, Republicans blocking an Obama nominee in 2016 could be playing with fire. In their zeal to stop Obama at any cost, Republicans may get their wish to have the next President select the new Justice.
What Republicans may not have thought through, however, is the potential impact of the volatility of the 2016 General Election. First, given the fact the Democratic nominees for President have won the popular vote in five of the past six Presidential Elections, the next President certainly could be a Democrat.
While many people discount the likelihood Hillary Clinton could prevail in November, she has plenty of time to overcome the challenges she faces. And although most “experts” discount Bernie Sanders chances of becoming President, they may be underestimating his appeal to non-Democratic voters concerned about political and financial corruption (i.e., some of the same supporters of another “outsider,” Donald Trump).
Even more significant is the fact Democrats could take control of the U.S. Senate because, in this year’s election, Democrats have 10 seats to defend while Republicans have 24. If Democrats hold their own and gain just 5 of the 24 Republican seats, they will constitute the Senate majority.
Although Democrats still would be short of blocking a filibuster, it only takes a simple majority vote to make a rules change so a Justice could be confirmed with the same simple majority. And if Democrats somehow gain more than 5 seats, they might get the 60 votes needed to approve any nominee outright.
With a Democrat in the White House and a Democratically-controlled Senate, the next President’s nominee could make any Obama nominee look tame in comparison. Hence, Republicans could “win the battle but lose the war.”
This is why a compromise on both sides may make the most sense. If the Republican-controlled Senate allows the President to nominate a moderate candidate, Republicans avoid the risk of later having someone they would find much worse. And if Obama compromises, he gets the chance to expand his legacy by nominating a Justice who will have influence for decades to come.
So the only question for the Republican Senate leadership, is, “How lucky do you feel?”
Aaron Harber, host of “The Aaron Harber Show,” seen on Channel 3 KCDO-TV, ION Television (KPXC-TV), and COMCAST Entertainment Television. Go to http://www.HarberTV.com to watch programs 24/7. Send e-mail to Aaron@HarberTV.com. (C) Copyright 2016 by Aaron Harber and USA Talk Network, Inc. All rights reserved.