The Corner

Obama Has Poisoned the Well for Scalia’s Replacement This Year

Senator Schumer is of course spinning like a top when he tries to say that Democrats don’t obstruct judicial nominees. As Shannen Coffin points out, the Democrats pioneered the art, first, of blocking judicial appointees, and, second, of ramming judicial appointees down the minority’s throat at the expense of the filibuster. Republicans hope they will get their comeuppance on the first count this year, and on the second next. So what goes around comes around, as Senators Schumer and Reid were amply warned.

But there is a much larger point. If you’re president and you want a Congress controlled by the other party to confirm your judicial nominees, you really can’t afford to do a bunch of things that the other party believes are brazenly unconstitutional. Because if you do that, half the country may conclude that you’re a danger to constitutional government in general, from which it would follow that our country’s very future may depend on a thin 5–4 majority of conservative justices on the Supreme Court, an unreliable-enough majority given Justice Anthony Kennedy’s whimsical mood swings. Under the circumstances that this administration has willfully created, there is probably only one thing that all Republicans can agree on, which is that the 5-4 majority on the Supreme Court will flip over their dead bodies. 

In short, Democrats can just go ahead and forget about getting anyone remotely liberal confirmed this year. President Obama has utterly poisoned the well. That’s on him, his phone, and his pen

Contributing editor Mario Loyola is senior fellow and Director of the Center for Competitive Federalism at the Wisconsin Institute for Law and Liberty. He began his career in corporate ...

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