SCOTUS ANALYST: Obama’s ‘Most Likely’ Candidate to Replace Scalia is…

Screen Shot 2016-02-16 at 8.46.17 AMLord help us all if Obama gets his way.

By Tom Goldstein 

This post substantially revises and supersedes my earlier one on how the political parties will likely approach the Scalia vacancy, in which I had concluded that Ninth Circuit Judge Paul Watford was the most likely nominee.  On reflection, I think that Attorney General Loretta Lynch is more likely.  I also think that the Republicans will eventually permit the nomination to proceed on the merits and reject it on party lines.

In thinking about how to respond to the vacancy on the Supreme Court, the administration has two priorities.  First, fill the Scalia seat by getting a nominee confirmed.  The stakes could not be higher:  the appointment could flip the Supreme Court’s ideological balance for decades.  Second, gain as much political benefit as possible and exact as heavy a political toll as possible on Republicans, particularly in the presidential election.  Precisely because of the seat’s importance, this is the rare time that a material number of voters may seriously think about the Court in deciding whether to vote at all and who to vote for.

Those priorities reinforce each other.  The Republican Senate leadership has staked out the position that no nomination by President Obama will move forward.  Because Republicans hold the Senate majority, they have the power to refuse to hold confirmation hearings before the Judiciary Committee and/or a floor vote on the nominee.  So, any effort to replace Scalia is dead on arrival unless the political dynamic in the country forces Republicans to change their minds and allow the nomination to proceed.

Not surprisingly, Republican priorities are the exact opposite.  Fundamental conservative legal victories over the past two decades hang directly in the balance.  To take just one example, Ted Cruz is exactly right to say that a more liberal replacement for Justice Scalia is very likely to overturn the Supreme Court’s recent recognition of a Second Amendment right to possess firearms or at least render it a nullity as a practical matter.  There are dozens of other examples.  Conversely, a Republican appointee would not only preserve those victories but continue the Court’s steady move to the right.

In addition, blocking President Obama’s nominee is good politics for important subsets of Republicans.  Most directly, the Supreme Court is a signal issue for the conservative Republican base in a way that it is not for core Democratic constituencies.  Since at least Richard Nixon, conservatives have effectively rallied against the Supreme Court as a liberal institution that is out of control.  We see that dynamic today in Republican candidates’ remarkable attempt to frame even Chief Justice Roberts as a failure, based on his votes to uphold the Affordable Care Act and the administration’s implementation of the Act.

Those competing priorities put the political parties in a deadly embrace from which neither will easily budge.  The administration feels a constitutional responsibility to press for the confirmation of a nominee and every political advantage in doing so.  Republicans cannot accede to that effort because their base will not permit it.

In all of this, it is impossible to overstate the importance of Ted Cruz, who will make the appointment a central issue in the campaign and who will drive enormous pressure against proceeding with any nomination.  That pressure is likely to be too great for the Republican Senate leadership to overcome, even if it concludes that it would be better politics to do so.

Cruz is extremely sophisticated regarding these issues both legally and politically.  He understands the stakes perfectly and is a thought leader among Republicans regarding the Court.  He immediately understands the value to his own personal candidacy – and he would say, to Republican prospects in the general election – in taking the hardest possible line against permitting President Obama to replace Scalia.

On some level, this is a reprise of Cruz’s filibuster that shut down the government in an effort to rally conservatives in support of defunding the Affordable Care Act.  The filibuster motivated the Republican base and dramatically raised Cruz’s own personal profile.  But the general consensus is that it hurt the Republican brand overall among independent voters.

All that said, I do think that an Obama administration nominee may in fact receive a vote.  As Amy described in an earlier post, there is no genuine precedent for refusing to act on a Supreme Court nomination because of an impending presidential election.  Senate Republicans’ current contrary position invites the administration to put them in a very difficult political position in which there is substantial pressure from important blocs of voters to act on the nomination.

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