When Judicial and Presidential Politics Collide

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.