I was going to entitle this post “I wonder what he meant by that?” (attributed to Talleyrand on hearing of the death of the Turkish ambassador).
Mitch McConnell wasted no time after Justice Scalia’s death before planting his foot firmly in his mouth, as reported by Politico:
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,†McConnell said, at a time when other elected officials, from Sen. Bernie Sanders to future Senate Democratic Leader Charles Schumer, were releasing statements offering condolences to the justice’s family, which includes 26 grandchildren.
There’s more than one way to interpret that. He could be saying that the president shouldn’t nominate someone until after November. Or he could be saying, as it has been interpreted by practically everybody, that the Senate shouldn’t confirm any appointment until after November. Or both.
Whatever he actually meant it was an unforced error since it has handed the Democrats a campaign issue and, once again, cast Republicans in a bad light. But that’s only the first miscalculation.
Most of the Republican nomination-seekers are lining up behind Sen. McConnell’s gaffe. While that may be popular with the base, it certainly sounds terrible beyond the base. That’s the next miscalculations.
However, those who think that all of this miscalculating will give an edge to the Democrats may be miscalculating, too. Both of the president’s previous nominations have been solidly progressive judges with varying degrees of activism. If he seizes this opportunity and nominates another equally progressive justice, that could well be another miscalculation. Gallup’s most recent poll of American opinion on the Supreme Court finds more Americans seeing the Court as too liberal compared to too conservative by almost two to one and within the margin of error of “about right”. Nominating another progressive will all but certainly feed that impression.
What I would like to have happen is for everybody to take a deep breath, for the president to nominate a centrist to the Court (which will still tilt the Court in a more progressive direction), and for the Senate Judiciary Committeee to give the nominee an honest and considered hearing, recommending the nomination be approved if the candidate is worthy and granting the president’s choice a certain degree of deference.
Like that will happen in an election year.
You’re suggesting the constitutional originalist party should replace the great constitutional originalist justice by following the clear intent of the original Constitution?
Why, that’s mad! These are Republicans we’re talking about. They follow the Constitution the same way they follow the Bible: only when it serves as a tool to oppress.
Just saying what I wish would happen. I know it’s blue skying.
However, the Republicans aren’t the only ones stretching things for political gain. In his statement Senate Minority Leader Harry Reid spoke about the Founding Fathers’ interest in bipartisan action which is nonsense. The Founding Fathers didn’t envision political parties of the sort we have at all.
The public’s knowledge of the Supreme Court is pretty limited. I’m guessing that they think it’s liberal because of gay marriage, and not because of its rulings on the VRA, labor rights, or Hobby Lobby.
It doesn’t matter though. Republicans have basically signaled that they are reticent about even questioning a nominee. I think they’re dreading a repeat of Clinton’s Benghazi hearings. A bunch of senators trying to label someone a crazy radical liberal because they think climate change is real might backfire. And the weird essence of Scalia’s late years regarding gay marriage is in the minority. Most people, conservative or liberal, do not find it intolerable that there’s actual hope for a good life embedded somewhere in the constitution, even it’s not explicitly stated.
I think McConnell’s announcement was an unforced error too, and said so in another comment thread…..but the more I think about it the less I think it matters. It’s not as though the GOP wouldn’t be blamed for obstruction anyway and there’s recalcitrance on both sides which prevents the reasonable scenario you describe.
So what’s happened is McConnell has signaled that this will be a base turnout election. Count on a lot of references to Heller.
I don’t think it was necessarily an error, at least not yet. It’s only February and the primary battles are in full swing. Anything said needs to be taken in context of primary signalling. It will only become an error if the GoP sticks to this attitude come hell or high water (which is certainly a possibility). However, circumstances change. Once the primaries are over both parties will have more flexibility to try to appeal to all the disaffected independents.
If the President nominates a progressive, then that’s easy for the GoP. They can bring the nomination up for a vote and defeat the nominee, but I can see why the GoP would want to avoid vulnerable moderate members from having to vote at all. I think the ideal Democratic nomination (from a political perspective) is a centrist minority woman.
One of my earliest posts was on the illusory nature of being a centrist. Everybody is the center of his or her own universe.
If you’re a progressive, Justices Kagan and Sotomayor are centrists. If you aren’t, it’s pretty obvious they’re progressives with differing degrees of activism. Where you stand depends on where you sit.
People who are at the far ends of their respective spectra can’t even see the center from where they sit.
Over at SCOTUSblog they seem to believe that the nominee will be chosen solely on the basis of identity politics. Andy echoes that above. That’s really all that matters, that it not be a white man at all, and preferably not a white woman either. Ideally it will be someone along the political ideology of Pol Pot as far as the Dems are concerned – all opposition must be exterminated.
Besides I think everyone is missing the point about McConnell’s statement. (Forget that Schumer & Obama and all the other Dems wanted obstruction in 2007 & 2008 – funny to see Schumer say NOW that he was nothing more than a dishonest sack of partisan shit THEN.) It’s not directed at Obama, or the next nominee. It’s directed at Ruth Bader Ginsburg, who has been rumored to want to retire this summer so that Obama could pick her replacement. McConnell’s statement let’s it be known that this won’t be easy or automatic for one nominee. For two? Forget it.
Here’s the thing about Scalia–for all of his originalist humility and cultivated disdain, he was quite happy to be a political celebrity worshiped as a genius by lawyers and journalists. I’m sure most if not all of his clerks were from elite law schools, because how else can you identify those suitable to follow a genius. Undoubtedly his successor will come from an elite law school and will be full of awe-inspiring appreciations of the worth the American legal system and the minds who stock it and there’s going to be nobody who thinks the law is a possibly useful tool for solving mundane matters. Those are the centrists–lawyers who deal with housing and bankruptcy, and judges who sit on traffic and family courts for thirty years and develop small slices of wisdom rather than sophistic theories of legal interpretation.
“Undoubtedly his successor will come from an elite law school and will be full of awe-inspiring appreciations of the worth the American legal system and the minds who stock it and there’s going to be nobody who thinks the law is a possibly useful tool for solving mundane matters.”
Probably. I think all the current justices and the vast majority from the last 50 years came from Harvard and Yale.
Andy,
It’s because political establishment has to treat the abstract products of law as if they were solutions in math or science. Like Brown v. Board of Education was something arrived at through reason rather than will and common sense.
The appointment will pretty much be a non-political issue in the elections — the people who care about SCOTUS appointments are very partisan and already were going to vote for whatever lousy candidate their party offered. Normal people will be wondering what this candidate can do for me.
PD- Largely true, except that there are some issues like abortion which I think do interest a larger swath of voters. I think the mistake McConnell made here was to make the election more interesting for Democrats. Hillary is not an inspiring candidate. This provides another issue.
Steve
I think PD is correct. Democrats are also doing their best, they just can’t help themselves, to cause the casual voter to tune out, as they have taken no time at all to arrive at blaming it all on racism. Except for the most rabid dogs, that dog just doesn’t hunt well anymore.
Poor Hillary, just when she got her fake barking dialect going……..
I believe SCOTUS is currently all Harvard Law. Anyway, the Harvard & Yale types have been doing a bang up job of running the country in recent years, so clearly we shouldn’t change the formula. Who wouldn’t want another 9/11, or Iraq War, or Mortgage Meltdown, or the Worst Recovery Ever for Anyone Who Isn’t Rich? (Bonus point s for Libya, Syria, and the worst refugee crisis in decades.)
Seriously, how can we not elect even more of these brilliant minds?
” It’s directed at Ruth Bader Ginsburg, who has been rumored to want to retire this summer so that Obama could pick her replacement. “
That’s one rumor I hadn’t heard. However, with Ginsburg’s age in mind, and now losing a good personal friend on the court, I can see the possibility growing that she might want to “turn in her black gown” sooner rather than later. If this should happen it seems far more fitting that a more liberal jurist be approved, than what is now in contention for who should be Scalia’s replacement.
Another similar scenario involves the nominating process surrounding Robert Bork. Being revisited is what consideration and power should the current Senate majority have in the Supreme Court nomination by the current president. In this 1987 NYT’s article the strongly endorsed view was that the party winning the Senate has “every right to resist.”
I hope he appoints a ( wise ) Sharia based Islamist jurist. I hope he comes completely out of that closet so some important issue can be settled. Such as He has said, this is an Islamic nation.
Preferably, an Islamist Female Black Lesbian communist to round out the court.