The Corner

Law & the Courts

An Important Distinction

I argued earlier that the Republican-led Senate needs to “hold the line” now that we have a vacancy on the Supreme Court. For the record, I want to clarify exactly what I mean by that. Because I think that President Obama will inevitably choose somebody who is unacceptable to the Senate — and because I think that this is a foregone conclusion — I did not bother to note the obvious caveat: Namely, that if the president were to choose somebody good (i.e. an originalist), the Senate should of course confirm him.

I bring this up because there seems to be a material difference between my position, which is “of course Obama is going to make a bad choice, so of course the Senate should hold the line,” and the position that has been taken by Senators Rubio, Cruz, and McConnell, which is “the Senate will flatly refuse to accept anybody for the rest of Obama’s term, because this is a job for the next guy.” In practice, these two positions may well turn out to be identical, which is why I was initially pleased to hear Cruz take the position that he has. But in theory, they are not. And the theory is going to matter going forward.

Why? Well, because to the average person watching the fight, one seems reasonable and the other does not. This, remember, is a political fight. Certainly, there is nothing in Article II that requires the Senate to move on the president’s recommendation. Hell, there is nothing in Article II that prevents the Court from having an eight-person staff in perpetuity. But, in winning hearts and minds, “no, no, no, no, no!” is a less attractive proposition than “the president keeps nominating candidates who are unacceptable to us, and we were elected to stop that.” As the strategy unfolds, Republicans might think about better honing their arguments. Already, the Democratic party will be able to undermine whatever specific criticisms are likely to be forthcoming by saying, “they were opposed to this guy before he was even named.” Given Obama’s track record, that approach may be prescient; but it’s not especially smart PR.

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