Why the Fight to Replace Antonin Scalia Will Be Ugly

5 minute read

These United States did not need another reminder that their politics are broken. The signs have been everywhere this grim election season. Fury defines campaign crowds, candidates compete with schoolyard insult and people’s elected bodies outperform whenever they find a way to not shut down the government again.

But another reminder is exactly what they got Saturday night. The unexpected death of Supreme Court Justice Antonin Scalia presented the nation with yet another test it is almost certain to fail. The Constitution is clear about the proper response. The president shall nominate a replacement, and the Senate, through its powers of advice and consent, should approve or disapprove that nominee based on his or her merits.

Instead, Senate Majority Leader Mitch McConnell greeted the news with an immediate press release calling his troops to the trenches. “This vacancy should not be filled until we have a new president,” McConnell said in a release that came roughly an hour after the news was confirmed. In response, President Obama, who had spent the day golfing in California, changed clothes and rushed to the camera to tell McConnell he would be nominating promptly. “These are responsibilities that I take seriously, as should everyone,” he said. “They’re bigger than any one party. They are about our democracy.”

So the lines were drawn, as they have so many times in recent years. The incentives were clear. Both would lose if the country functioned as it should, if the president and the Senate came together to find a nominee all could agree on. Both sides could win by setting a new precedent for dysfunction and disharmony.

At the Republican debate, which began only minutes after Obama finished speaking, the candidates quickly fell into line. Frontrunner Donald Trump called for McConnell to “delay, delay, delay.” Ohio Gov. John Kasich, who is running on his potential to end deadlock and unite Democrats and Republicans, said “I believe that the President should not move forward.” Former brain surgeon Ben Carson, Florida Sen. Marco Rubio and Texas Sen. Ted Cruz all agreed. Only former Florida Gov. Jeb Bush was willing to support the possibility of not leaving the court short a potentially decisive vote for more than a year.

For Republicans, this position is not a difficult one to justify. Forty-three percent of self-identified Republicans in 2015 said Obama was a Muslim, according to one national poll. Half of Republican voters in the New Hampshire primary on Feb. 9 said they had been betrayed by their own party. Any path but obstruction would almost certainly lead to depressed Republican turnout in November and losing the White House for the GOP, if not the Senate. Even South Carolina Sen. Lindsey Graham, a Republican who has long supported the qualified Supreme Court nominees of Democratic presidents, made clear that his vote was far from certain. “President Obama is not going to get the benefit of the doubt from me,” he told reporters before the debate began.

For Democrats, who are hoping to keep the White House in November by casting Republicans as extreme, reckless and rigid, the incentives were similarly alluring. The coming obstruction will give Democrats a talking point through the general election, a fresh example that the other party, which less than one in four Americans identify with, has gone off the rails. “The Republicans in the Senate who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution,” said Democratic frontrunner for the nomination, Hillary Clinton, in a talking point that will be repeated endlessly in the coming months. Obama has little reason to appoint a compromise candidate, like a Republican nominee who would infuriate his own base before an election year. It is not even clear if such a candidate could get confirmed.

So go ahead. Pick your team. Figure out how you want to channel your anger. We all know the drill. Democrats will point out that since 1975, the longest it has taken for a Supreme Court nominee to get a vote in the Senate is 108 days, leaving plenty of time for the President’s pick to be considered. Republicans will point out that nominees have a much lower chance of succeeding in the final year of a President’s term. (A 1993 paper by P.S. Ruckman Jr. at Northern Illinois University found that up to that year, 19% of Supreme Court nominations had been rejected in U.S. history. Almost half of those rejections came in the last year of President’s term.)

“Modern politics is a long succession of social norms giving way to power,” tweeted New York magazine writer Jonathan Chait, after the Scalia news came through. There is an important corollary to that. The democratic experiment has the power to sabotage itself. When factions divide in a way that makes breakdown and collapse mutually beneficial, breakdown and collapse become possible.

Scalia’s untimely death has given the nation another chance to look at itself. The crosscurrents of division, driven by massive economic and demographic transformations, are no secret. The path out of this pickle, absent an unlikely economic revival or a new generation taking over, remain as mysterious as ever.

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