When Judicial and Presidential Politics Collide

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Posted in: Politics

Who benefits most from an energized electorate? That’s the immediate question raised by the death of Associate Supreme Court Justice Antonin Scalia Saturday morning. You think the campaign has been ugly so far? It’s about to get a lot worse, as judicial and presidential politics collapse into each other. I see it unfolding like this:

To begin with, President Obama will not fill the vacancy. Republicans control the Senate, Majority leader Mitch McConnell (R-KY) and other prominent Republicans have already signaled their opposition to filling the seat prior to the election, and we’re in the thick of a hyper-partisan campaign. Unless he nominates either Ted Cruz or Hillary Clinton—candidates the Senate Republicans would support precisely because of the effect their appointment would have on the election—November will come and go with eight justices on the Court.

But that doesn’t mean Obama plays no role. On the contrary, his role just became extraordinarily important. He will send the Senate a candidate to replace Justice Scalia, as he should. He is the president, after all. Why should he sit on his hands while the Court is at less than full capacity? Then, the failure to act becomes a charge against the Republicans.

But the potency of that charge is not simply to remind everyone that Republicans are the Party of No. Far more importantly, the nominee will become a referendum on the election itself. Because the nominee almost certainly cannot be confirmed, the nomination is primarily a political act. More precisely, it is an exercise in symbolic politics. And symbols matter in American political life precisely to the extent they can be used to advance competing visions of the future.

To see how this might play out, imagine the president nominates Massachusetts Senator Elizabeth Warren to fill Scalia’s seat. She is too far to the left to be confirmed by this Senate, especially in an election year. Instead of becoming Justice Warren, therefore, she will become the symbolic face of the election. Every candidate will be asked whether they approve of her nomination and, if elected, whether they would renew it.

Because Warren is exceedingly popular on the left wing of the Democratic Party, Clinton and Sanders will quickly feel obligated to align themselves with her nomination. This is particularly likely now that Clinton has decided she needs to appeal to minorities and young voters by running on Obama’s legacy. Republican candidates, of course, will do just the opposite.

It is important to understand how this will differ from the usual confirmation battles. Every Supreme Court vacancy leads to a brief spat about the rule of law and the role of the Court. But ordinarily, those squabbles do not take place in the middle of a presidential campaign and mean relatively little to most voters. The exceptions—like the confirmation of Clarence Thomas—are unusual precisely because they stand in for larger issues in American life.

Likewise, because Justice Scalia’s putative replacement will become part of the presidential campaign, she will come to represent not just a particular view of the law and the courts in American life, but the very concrete difference between, say, a Clinton and a Cruz victory in November. For the first time in many years, a presidential campaign is about to become a referendum on the merits of a particular nominee for the Supreme Court. The nominee will become a partisan tool in presidential campaign politics.

The fate of the Court will be used to energize the electorate, with Obama’s nominee as the mobilizing and organizing symbol. Do we want the future to look like the views held by Elizabeth Warren? For many on the left, the answer will be a resounding yes. For many on the right, the thought will be terrifying. Quite unfairly, Warren will be made to stand for something much larger than she. She becomes a symbol of the future.

The future of hot button issues like the death penalty, reproductive rights, religious freedom, and federalism will become even more prominent, precisely because Justice Scalia’s death will be thought to throw these issues into doubt. The nominee’s views on these and related issues will suddenly be at the center of a debate that will become increasingly frantic, and therefore increasingly distorted. Both parties will thus use Justice Scalia’s death as a call to arms.

The fate of a closely divided Court hangs in the balance, they will warn. Unless we control the Senate and the presidency, the choice for his successor will fall to those who would destroy the Constitution and our way of life. Indeed, Ted Cruz has already started down this road. Just hours after we learned Justice Scalia had died, Cruz warned at the most recent GOP debate that Trump, if elected, would “appoint liberals,” and that under President Trump, “your Second Amendment will go away.”

So who benefits from an electorate energized in this unfortunate way? Traditional wisdom says that high turnout benefits the Democrats. Because this is widely believed, Justice Scalia’s death is likely to have other consequences as well. For example, I suspect it will reinvigorate ugly partisan battles over voter ID laws, voter registration practices, and felon disenfranchisement statutes. Republicans will want to suppress minority turnout in order to protect what they rightly see as a fast-declining white America.

This of course will also intensify the already hyper-charged immigration debate. We’ll start to hear even more reckless talk of a workable wall. As the angry white voter rushes to defend the tribal barricades, I suspect we will be treated to more hate speech about who best represents America’s future, who deserves to participate in American life, and what a “real” American looks like. Xenophobia will spike. Islamophobia will get worse. Racist demagoguery will become less coded and more explicit.

Of course, I could be mistaken. Obama may squander the chance to influence the election this way by nominating a candidate who does not have this polarizing effect. Alternatively, given the scenario I have outlined, no one would begrudge a candidate like Elizabeth Warren if she politely declined the nomination. She in particular may have other, more ambitious plans. But I cannot shake a simple suspicion: If we thought the campaign was bad now, it’s about to get worse.

  • Pam

    Obama has done enough damage. We sure don’t need to be stuck with a lifetime appointment of his traitorous anticonstitional policies!

  • Devorah Pace

    GOD HELP US!!

  • Robert Brumley

    The boom boom in the boom boom!

  • Walker

    Republicans have NEVER tried to supress votes by anyone. You are NOT an objective writer . . although I think you try to “appear to be impartial”. But your liberal prejudice is showing. To say that Republicans would attempt to suppress voting by any group, race, or ethnicity, is not only wrong, it is ugly. What an deceitfully, erroneous statement. The entire premise of your article is wrong. Also, you don’t even have enough sense to know that since 1960, the president is prevented from making supreme court appointments during election years. You are that ignorant, yet you wrote an entire misleading column about it. I resent Col. West printing your article on his website.

  • Michael Riley

    99% of the lawyers give the rest a bad name.
    SCOTUS members politically or agenda motivated are frauds.

  • Kay Martin

    HMMMMM it is truly an optimal time for the democrats for Justice Scalia to leave this world. I’m truly saddened to hear about Justice Scalia passing away. He was a dedicated man to the conservative people of the USA and he will be missed by all of us. Prayers for his family and friends who will miss him and his infinite love of the USA and our Constitution.

  • carlcasino

    Warren is no fool, she has her eye on the oval office and she is well aware that getting in the Clinton machines way is a one way ticket to the cemetery. There are tons of fools on the Left that would love to be the person to change America forever by playing John Roberts role.

  • AWB2

    Another element in the play:

    Source: The Volokh Conspiracyopinion

    Flashback: Senate Democrats in
    1960 pass resolution against election-year Supreme Court recess appointments

    By David
    Bernstein February 13

    Thanks to a VC commenter, I discovered that in August 1960, the
    Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing
    the sense of the Senate that the president should not make recess appointments
    to the Supreme Court, except to prevent or end a breakdown in the
    administration of the Court’s business.” Each of President Eisenhower’s SCOTUS appointments
    had initially been a recess appointment who was later confirmed by the Senate,
    and the Democrats were apparently concerned that Ike would try to fill any
    last-minute vacancy that might arise with a recess appointment. Not
    surprisingly, the Republicans objected, insisting that the Court should have a
    full complement of Justices at all times. Of course, the partisan arguments
    will be exactly the opposite this time.

    Will be most interesting how this story finally plays out.

  • Roberto Enrique Benitez

    Is it racist, xenophobic, bigoted, or un-American to believe in an exegetical interpretation of the Constitution as Justice Scalia did or to believe as Jefferson did that the federal government must be bound by the chains of the Constitution? I won’t get into discussing watering the Tree of Liberty.

  • William Edward Harris Jr.

    The death of Justice Scalia has indeed brought a moment in history that will define our lives and culture. The people of the United States have been polarized by issues such as abortion, 2nd Amendment, and religious Freedom. This may bring the country to civil strife, maybe civil war. I pray that GOD will have mercy on us and give us the President we need, not the one we deserve.

  • Jerry Sutton

    Nothing like a racist race baiter as shown by his own words.

  • Kingdom Ambassador

    The reason it’s going to get uglier is because of the constitutional framers’ egregious dereliction in establishing the judicial branch:

    “…The Bible stipulates, among other things, that judicial appointees must be men of truth who fear Yahweh and hate covetousness. (See Chapter 5 “Article 2: Executive Usurpation” for a list of additional Biblical qualifications.) The United States Constitution requires no Biblical qualifications whatsoever. Nowhere does the Constitution stipulate that judges must rule on behalf of Yahweh, rendering decisions based upon His commandments, statutes, and judgments as required in Exodus 18. That not even one constitutional framer contended for Yahweh,3 as did King Jehoshaphat, speaks volumes about the framers’ disregard for Him and His judicial system:

    ‘And he [King Jehoshaphat] set judges in the land throughout all the fenced cities of Judah, city by city, and said to the judges, Take heed what ye do: for ye judge not for man, but for YHWH,4 who is with you in the judgment…. And he charged them, saying, Thus shall ye do in the fear of YHWH, faithfully, and with a perfect heart.’ (2 Chronicles 19:5-9)….”

    For more, see http://www.bibleversusconstitution.org/BlvcOnline/biblelaw-constitutionalism-pt6.html.

    Then, find out how much you REALLY know about the Constitution as compared to the Bible. Take our 10-question Constitution Survey at http://www.bibleversusconstitution.org/ConstitutionSurvey.html and receive a complimentary copy of a book that EXAMINES the Constitution by the Bible.

  • Rand.Warrior.Rants

    Spot on analysis we think sir. The political rhetoric dial will get turned up several notches because of this.

  • Kelly M. Haggar

    “But the potency of that charge is not simply to remind everyone that
    Republicans are the Party of No.”

    Or the Rs could be potent by reminding everyone that the Ds are the Party of More Gummit. Choices have consequences. Elections are supposed to matter; to make value judgments. “Lay on, Macduff. . . . “

  • Frank Willa

    It seems to me that there is a great irony to the Republican call to delay the nomination and selection of a replacement on the court. The constitution directs the president to nominate and fill vacancies on the court. There is no directive to wait for an election. It is the constitutional role of the senate to act upon the nomination’ they have already said they will reject any nominee – no hearing needed, no advisement. Republicans have repeatedly accused and decried President Obama as having acting “outside” his constitutional role. Here, they want him to do just that; and likewise for themselves to act “outside” their constitutional role – inventing a delay in a presidential election year not stated in the constitution. This is not the “strict construction” interpretation the Republicans profess to endorse. It seems to me to be a constitutional activism that would invent an amendment as to the appointment process.

  • Chart Wizard

    Thank you for a very considered and equally well written article.

    Republicans are terrified about a Supreme Court that is not a guaranteed 5-4 in their favor. Especially one that is a guaranteed 5-4 against. They love the rules, and love quoting the rules, as long as the rules support what they want. Otherwise they obstruct.

    But I’m not so sure the Republicans can afford to entirely block and up-or-down vote this time.

    They can easily lose the Senate, perhaps also the House, as well as giving away any chance for the White House.

    In short, the GOP would be playing with a bomb that could just as easily blow up in their faces.

    Being a recovering Republican myself, they don’t have the mettle for that.

  • Justsomedude58

    I still think the word “Islamophobia” should be “Muslimophobia”. I’m ok with the word “Xenophobia”.

  • No comments? I suspect that means this one will never be approved, but…

    Though the wording of the title is not explicit, “Judicial” must be a second modifier of “Politics”, and “Judicial Politics” is EXACTLY what the Supreme Court is supposed to be above. And yet Professor Margulies takes it as a given of the current situation in America. Sadness.

    At least the non-political nature of the judicial branch was supposed to be an important premise before Bush v Gore, a decision so wrought with flaws that even the opinion itself cautions against its own use as future precedent. Naivete about the primary role of the Supreme Court? Or did they just want to leave their hands free in case they got another chance to pick the president?

    Shortly after Bush v Gore I participated in a discussion with a law student in which he defended the decision. However the interesting part of that discussion was his explanation of why he was in law school. He regarded America as a judicial dictatorship and he wanted to become one of the dictators. From that perspective, “judicial politics” makes much more sense, eh?

    Professor Marguilies mentions the 2nd Amendment, which was one of the areas where Justice Scalia was especially creative in reinterpreting the Constitution’s words. However, as the situation now exists, I don’t think that even Scalia himself could explain how “advice and consent” is supposed to mean “reject unconditionally and absolutely before any nominee has been nominated”.

    Few justices have left a legacy that could only be undone with a Constitutional amendment. Yet that is what many, probably most, people believe that Citizens United calls for.

  • Paladin

    “”Every Supreme Court vacancy leads to a brief spat about the rule of law and the role of the Court.””
    A LITTLE SPAT
    Perhaps THAT is the problem: Righteous art thou, O יהוה, and upright are thy judgments.
    Woe unto them that decree unrighteous decrees, and that write grievousness which they have prescribed;
    Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift: for a gift doth blind the eyes of the wise, and pervert the words of the righteous.
    The king’s strength also loveth judgment; thou dost establish equity, thou executest judgment and righteousness in Jacob.