As I suggested yesterday on Twitter, I am of the view that the Republican majority in the Senate must hold the line against President Obama as he seeks to replace Justice Scalia. This is not because I believe that the president has “no right” to nominate a new justice — he does — and it is not because this is an election year and that there is something legally different about election years. Rather, it is because President Obama has a bad record on judges, and because there is no good reason to think that his instincts will change now. If one believes that advocates of “living constitutionalism” are effectively enemies of the rule of law — and I unreservedly do — one has every reason to be terrified by the prospect of another “living constitutionalist” making it onto the bench. Admirably, Antonin Scalia spent his life arguing for the proposition that a free society “treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated.” Lamentably, President Obama seems to believe quite the opposite. That, of course, is Obama’s prerogative. But I see no good reason that the Senate majority (which claims to agree with Scalia) should indulge him in his folly. As we are always being told, “elections matter,” and in 2014 the Scaliaites won the day. If they do not want another Sonia Sotomayor on the bench, they do not have to put another Sonia Sotomayor on the bench.
The politics here would be tricky. As far as I can see, President Obama has at least two good options before him. The first would be to try to drive out turnout in 2016 by nominating someone who a) will agree with his party on pretty much everything, and b) can be spun easily into a martyr. As we learned with the Sotomayor nomination in 2009 (and as I learn each time I criticize her), it is extremely easy to pretend that Republican opposition to unacceptable judicial philosophies is “really” opposition to the immutable characteristics of whoever happens to hold them. If Obama is worried that his party might lose the election in November, he’d be smart to choose a radical candidate who reflects one or more of the Democrats’ key minority constituencies, and then to demagogue the hell out of the resultant contretemps for as long as he feasibly can. In truth, conservative opposition to this candidate would have no more to do with his identity than progressive opposition to Clarence Thomas has to do with his being black. But this is politics, not physics, and nonsense flies cleanly through the air these days. If Obama is so minded, he can give that nonsense a push.
Obama’s second good option would be to heighten the civil war within the GOP by offering up a nominee that could feasibly be approved. If the president were to propose, say, the D.C. Circuit’s Sri Srinivasan, he would be able to point out repeatedly that Srinivasan had served in the Bush administration’s Office of the Solicitor General, and to note that, last time the Senate had been asked to vote on his nomination, it did so 97-0. (Among those who voted for Srinivasan in 2013 were Mitch McConnell, Marco Rubio, and Ted Cruz, all of whom have suggested that the Senate should wait to replace Scalia until the next president is in office.) As far as I can see, a Srinivasan-type appointment would provoke a serious fight within the Right, potentially weakening it ahead of November. In one quarter, you would hear the go-along-get-along types arguing that the president has a right to choose whomever he wants as long as they are “qualified,” and warning that a Bernie Sanders or Hillary Clinton nomination might yield someone much worse. In another quarter, you would hear the firebrands terming anybody who was so much as considering acquiescence to be a traitor to the cause. If Obama wants to see a public spat between the Republican nominee and some of the party’s elders in the Senate, this course strikes me as a clever way of doing it.
All in all, the President has the upper hand here. The Constitution serves in large part as a counter-majoritarian and government-limiting document, and, as such, the party that wants to expand government and channel the transient will of the majority will always have an advantage in such cases as legal meanings are put to a popular vote. In general, the GOP’s best play is to find judges who will uphold the charter as it is written, and to secure them in place as long-term bulwarks against the majority. (This is one reason that “judicial retention elections” would be disaster for conservatism.) But this, alas, is not an option here. Rather, conservatives are now fighting a desperate defensive action over which they have only nominal control (the “advise” of the equation part will be steadfastly ignored; in practice, the GOP has only “consent” at their disposal — or, rather, “don’t consent”).
If Republicans are smart, they will use the opportunity as a didactic exercise as well as a political one. In other words: They will advance the ball in dissent, just as Justice Scalia might have done. If, as is almost certain, Obama nominates somebody flatly unacceptable, Republicans must not just vow to block the nomination, but they must take the time and effort to explain why the nominee is unacceptable — and not just to their existing supporters, but to everybody. If Obama implies that Republicans do not have a right to vote down his nominees, the GOP must mount a persistent and passionate defense of the equal role of the Senate. If Obama suggests that it is “standard” for presidents to be given their way in an election year, he must be firmly and consistently corrected. Moreover, conservatives must learn to push every winning button we have. More broadly, we must explain to the public that there is no less on the line here than the future of the rule of law. More specifically, we must explain how disgraceful it is that a clear-cut case such as Heller yielded four dissents, and we must adumbrate the potential consequences for gun ownership and other individual rights should its dissenters become the majority. And, more than anything, we must point out that Supreme Court justices have life tenure, and that there is little long-term virtue in putting someone on the bench in haste.
And then, having done all that, we must fight like hell on the ground. It won’t be easy. It won’t be easy at all. But it has to be done, and it has to be done right now.