In the battle to replace Scalia, listen to what people are NOT saying

Immediately after Justice Scalia’s death, political battle lines began to form. The salvo which I found most interesting and revealing is the one in which Republican officials argued that the president is somehow foreclosed, or at least should be, from nominating a new justice this year because it’s an election year.

As I and many others noted over the weekend, it’s an outright lie to say, as many have, that no Supreme Court justices have been nominated and/or confirmed in election years. It has happened often. It’s likewise disingenuous to say, as many have, that the president should “let the voters have a say” in this by letting the next president nominate Scalia’s replacement. The voters decided, in 2012, that they wanted Obama to, among other things, nominate judges for judicial vacancies during the next four years. In light of this, all such suggestions along these lines are baseless and, indeed, are almost laughable.

Which should cause one to ask: why even suggest such laughable talking points? 

The answer, as it so often is in politics, is so that most people will be distracted from the real issue. Which, in this case, is the right’s desire to obstruct Obama at any cost and to, somehow, keep the court leaning right. Indeed, if you look past the words of the elected officials on TV and go straight to where the activists hang out and policy and tactics are discussed, this is laid bare.

Dan McLaughlin of Red State – an attorney and writer with whom I am acquainted – is the first Republican I’ve seen correctly point out that tradition and precedent are red herrings here. In his latest column he reminds us that the only actual rules in place here are that (1) the president can nominate anyone at any time; (2) the Senate must consent to the nomination with a majority vote; and (3) before that full vote is held, the Senate can prescribe whatever process it wants to get there. That is it. Dan does not waste time talking about historical precedent or engaging in the “let the voters have a say” rebop which made the rounds on Saturday and Sunday.

What Dan does talk about in the plainest of terms is the end game: delivering a political defeat to the president and preventing the confirmation of a justice of whom the right does not approve. He is not hiding this point. Indeed, knowing Dan as I have come to know him, I presume he would think it’s silly to hide the point. He is aware of the power of the Supreme Court, especially in this day and age, and his personal values and political views are such that the stakes in this regard could not be any higher. 

To that end, Dan concerns himself with which senators could or could not afford to vote for an Obama nominee and what either course would mean for them politically. Most of that is internal Republican stuff. Who can or cannot avoid being challenged from their right if they vote to confirm an Obama appointment, who can get away with being “wobbly” and the like. This is the language of political calculation, not of grand and lasting norms of history or decorum. These are the things political activists of both parties talk about when they’re not speaking to a national audience on “Meet the Press.”

There is short shrift given, however, to whether Republicans might suffer politically from so plainly obstructing the president’s nomination. Maybe people deeply embedded in Republican bubble think such considerations are crazy, but apart from some initial straight talk about the obstructionist agenda by people in politics, officials spent the weekend talking about precedent and decorum rather than the end game. There’s a reason for that.

The reason is that they likely know that so clearly saying “we plan to shoot down anyone Obama sends us and run out the clock on his presidency” wouldn’t play well. That most certainly is their plan but they do not believe that it can be their slogan. They, instead, are using appeals to phony precedent in the hopes that that narrative, rather than the real one takes hold. That it’s not about them trying to beat Obama and to, somehow, keep the court leaning to the right, but that it’s about an Obama power grab.

Ask yourself why most on the right won’t admit what Dan freely admits: that the game here is to do whatever possible to keep Obama from putting another justice on the court and to do it in such a way that doesn’t cost a Republican a seat in the Senate. Ask why they won’t freely say that there is nothing more important than putting conservatives on the bench and that, by doing so, conservative values will be promoted.

Could it be that they know their values, like a campaign of obstruction, might not play well if put out for public debate? Could it be that they realize that openly advocating for another Scalia on the bench would be a political loser? And if so, does that put lie to the idea, long held by conservatives, that they think like the majority of Americans when it comes to such matters? That they represent the norm and that the left represents some radical fringe? That, when it comes to matters on which the Supreme Court passes, that the Court looking more like America is bad for them? 

Then ask yourself what it says about those values in and of themselves.

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Craig Calcaterra

Craig is the author of the daily baseball (and other things) newsletter, Cup of Coffee. He writes about other things at He lives in New Albany, Ohio with his wife, two kids, and many cats.

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