Antonin Scalia. (photo: Paul Morigi/Getty Images)
18 February 16
Most weeks, New York Magazine writer-at-large Frank Rich speaks with contributor Alex Carp about the biggest stories in politics and culture. This week: the GOP's attempt to block Obama's Supreme Court nominee.
itch McConnell's pledge to block any Supreme Court nominee to succeed Antonin Scalia is finding what appears to be near-unanimous support from Senate Republicans, but others speculate that President Obama may use the fight to increase Democratic turnout at the polls this fall. What are the risks of McConnell's strategy?
Excuse me, but if we are talking about the politics of this brawl, it’s a no-brainer.
Obama, a lame duck who will not be on the ballot in November, has nothing to lose by standing on principle and carrying out a president’s duty to submit a nominee to the Senate. The GOP, by contrast, has a lot to lose come Election Day — including control of the Senate. Though a Times front-page headline this morning reads “Court Path Is Littered With Pitfalls, for Obama and the G.O.P.,” the only potential pitfalls it actually identifies are all for the GOP.
Still, before we get to the politics of the Scalia vacancy, please let’s talk about the bigger picture. The constitutional picture, if we must be grand about it.
As the president pointed out Tuesday, it’s laughable that conservatives who claim to be strict constitutionalists in the Scalia vein want to defy the Constitution by declaring that a president has no right to fill a Supreme Court vacancy during his final year in office. As the Washington Post columnist Catherine Rampell has pointed out, the GOP has taken the position that the first year of a president’s term also does not officially count — that’s the logic by which its presidential field (Donald Trump excepted) keeps insisting that President Bush “kept us safe” despite the fact that 9/11 occurred eight months into his presidency. Then again, the radical right that now rules the GOP, for all its protestations of strict fidelity to the Founding Fathers, has been as hostile to the federal government during the Obama years as the secessionists who embraced the ideology of John C. Calhoun to foment the Civil War.
Republicans in Congress have held up countless judicial appointments and Executive-branch appointments, denying American governance the essential tools of personnel in top-tier jobs; they have balked at the routine fiscal task of raising the debt ceiling; they have shut down the government altogether when they couldn’t get their way. Today’s secessionist insurgency has reached such an extreme that both Republican senators from the Dixie stronghold of Alabama, Richard Shelby and Jeff Sessions, have blocked the elevation of Abdul Kallon to the 11th Circuit Court of Appeals (where he would be the first African-American from Alabama to serve) even though they both backed him for his current post as a U.S. District judge.
Which brings us to the politics. Rob Portman of Ohio is one of seven incumbent Republican senators up for reelection this year in states that Obama won in the 2012 election. After Scalia’s death, he tweeted that it was “the best thing for the country” to “trust the American people to weigh in on who should make a lifetime appointment.” He refuses to acknowledge that the American people did weigh in on who should make that appointment when they voted in the last presidential election and the one before that. But like a true nullifier of the Calhoun persuasion, he simply denies the legitimacy of elections, laws, and a president he doesn’t like. Does he not think this will not be noticed by his own constituents when they return to the polls this fall?
What’s more, Obama could inflict more damage on Portman and other vulnerable Senate incumbents — and on the GOP’s national ticket — by nominating a qualified justice who by definition will further highlight the party’s knee-jerk hostility toward immigrants, women, black people, gay individuals, and Hispanics. James Hohmann of the Post cites the potential nominee Monica Márquez, the first Latina and first openly gay justice of the Colorado Supreme Court. Michael Tomasky at the Daily Beast proposes Tino Cuellar, an associate justice in the California Supreme Court who was born in Mexico and became a naturalized citizen before earning degrees at Harvard, Yale Law, and Stanford. Cuellar’s wife, Lucy Koh, is another contender: America’s first female Korean-American district judge, confirmed by a 90-to-0 vote in the Senate when Obama nominated her for the post in 2010 but sure to be rejected now by the same Republican senators who voted for her then.
How exactly does this end well for the GOP in an election year? By refusing to act on the Scalia vacancy, the party will once again brand itself as the party of obstructionism, government dysfunction, and animosity toward the growing majority of Americans who do not fit its predominantly white male demographic.