WAITING GAME

The first reaction to Scalia's death from nearly everyone I know in political science was to declare with complete confidence that there is no chance of the Senate voting on a nominee until after the presidential election. Here I want to elaborate on why I think that is nonsense so that in a few months I can rub many faces in this.

One legitimate point in favor of the "no confirmation" argument is that the Republican Party of 2016 is completely unaffected by logic or historical precedent. The fact that no seat has sat vacant for 11+ months since the Civil War does not mean they won't leave a seat vacant for 11+ months, nor will the fact that their position makes no sense in either logical or practical terms get in their way. They are more than capable of and willing to do really stupid things.

My position is that Obama is going to nominate someone quickly and the Senate GOP's political capital will give out long before next February. The 2016 Senate races feature 7 incumbent Democrats running for re-election and a whopping 21 Republicans (leaving aside for a moment the open seats). These Republicans include many first-timers who got really lucky and won in a GOP wave election in 2010 and now face very long odds of getting re-elected. Republican Senate wins in places like Illinois, Wisconsin, and Pennsylvania – all of which the GOP won in 2010 with flat-out terrible candidates – are, if not flukes, at least veering uncomfortably close to fluke territory. Next, add in the open seats the GOP desperately wants (Florida, Nevada, etc) and it is clear that the balance of Senate control is very much at stake in this election. Republicans trying to hold or take seats in generally liberal or liberal-leaning states are going to sign their own electoral death warrant by taking the hard-line position on this. In states where people voted for Obama twice in substantial numbers, "I agree with Ted Cruz and Donald Trump on this vote" does not seem like a winning message.

In short, the GOP runs a very real and legitimate risk of having a delaying tactic blow up in their faces by pushing the vote back to early 2017 when the Senate could be controlled by Democrats. They're not great long-term thinkers, but certainly someone has to realize that this is a possibility. Since no one among the GOP higher-ups can have any illusions about how this presidential election is shaping up for them, the idea that they are on the cusp of taking control of the White House borders on hilarious. It is entirely possible that the Senate Republicans are dealing from their position of greatest strength right now and that their advantage will only erode the longer this drags on.

Were the party run by intelligent people they might understand that currently they could force at least some kind of concession from Obama in the form of a centrist New Democrat corporate type (as is widely rumored already). Given who this nominee replaces, even appointing that kind of jurist would represent a huge shift away from the right in the overall ideology of the court. And Republicans could at least draw comfort from the fact that this is precisely the type of "liberal" with a hard-on for corporate power who is likely to please them on some decisions.

The idea that waiting somehow improves their position is premised upon one or both of two propositions: that their Senate majority will increase or that they will take the White House. The former has the closest thing to 0% chance of happening that exists in the universe of this election. If anything, they are overwhelmingly likely to lose at least a couple seats (Mark Kirk is about as likely to win Illinois as I am) and possibly even to lose control of the chamber. If Trump wins their nomination, the consequences down-ballot for GOP House and Senate candidates could be dire. As for the latter, the odds of taking the White House – any objective analysis of the election as it unfolds would have to conclude that the Republicans have a chance greater than zero but it certainly is not looking likely right now. A more brutally honest view is that they have a terrible field of candidates, none of whom can even get the Republican primary electorate to get behind them, who would be a substantial underdog in the general election.

Finally, leaving the Court at 8 members for a year will create a ration of 4-4 votes wherein Scalia would have been the deciding 5th vote for the conservative bloc. Though such tie decisions do not establish precedent, they will affirm the (generally liberal) decisions of lower courts in a number of important pending or upcoming cases. This would at best set back by several years the conservative movement's efforts in a number of issue areas.

The fact that delaying the vote is stupid and ultimately likely to hurt the GOP far more than it helps them does not mean they will decline to do it. These are petulant people playing to an audience of morons. However, please keep in mind how often GOP Congressional Tough Talk actually gets backed up these days. Based on the recent past the more likely scenario is that they will threaten, showboat, whine, throw tantrums, and then eventually hold the vote anyway. Unless of course they shut down the government, which they totally swear they're really gonna do one of these times.

Be Sociable, Share!

56 Responses to “WAITING GAME”

  1. Chicagjon2016 Says:

    You forgot that Hillaryzilla will be in jail and Feelmybernie is a pinko communist Marxist socialist.

    Clearly this can only lead to the white house and an outright if not supermajority in the senate for the GOP.

  2. geoff Says:

    I hope and trust you are correct about the Senate's action on Obama's no doubt corporate- friendly upcoming Supreme Court nominee, but disagree about the impact of 4-4 rulings. Important abortion and affirmative action cases are currently before the Court (both out of Texas), and a deadlock there will just let stand the quite conservative decisions of the lower courts. OTOH, the Court with Scalia would most likely have affirmed those rulings anyway.

  3. Bosh Says:

    It`s not going to help the GOP as a whole but taking a hard line on this is to the benefit of many individual members. For example if, say, Cruz filibusters and then gets shot down that`d be great for his primary campaign.

  4. Skipper Says:

    They also forgot one of Michael Corleone's principal rules: Never let anyone know what you're thinking.

    What they should have done was say they would welcome Obama's nominee. Then, once the person was named, hold interminable hearings before declaring the person unfit and asking Obama to please name someone else.

    Instead, they telegraphed that anything they do now is purely political and not based on principle. This will tend to increase voter turnout, that will benefit Democrats because the pool of numbskull voters is finite. Any increase in voter turnout will dilute the effect of the mouthbreathers.

    But if we're learned anything about conservatives it's that they love to shoot off their mouths, but are really short on rational, coherent thought.

  5. Uncle Kevin Says:

    Please, @Skipper, let's not bring "thinking" into this.

    They don't give a s##t about propriety, justice, or precedent. Most of aren't aware of the history and don't have the capacity to look it up for themselves if they wanted to.

    This is about sticking it to the uppity black guy who who wasn't born in this country, isn't eligible to be president in the first place, and was elected illegitimately twice.

    Any R senator who voted to move the Kenyan Muslim's Supreme Court nomination forward would face an immediate primary challenge, and that's what incumbents hate most. Opposing any action is the safest thing in the short term, and that's about all they can think about.

    Any of them that see the possibility of negative consequences are too scared of being primaried to do anything.

  6. Kevin Says:

    I know it will never happen, but I have this fantasy where they delay, lose the Senate, and then the Democrat president nominates Obama for the seat. Watching the R's know they're stuck with Obama for life would be utterly priceless.

  7. mb Says:

    If they give Obama another justice, those 4-4, non-precedent-setting decisions upholding lower court "liberal" decisions will likely become 5-4, precedent-setting decisions also decided against conservative interests. There is no downside in that scenario to continuing obstruction.

  8. Tim H. Says:

    Why not delay? President Sanders will be capable of picking an appropriate justice.

  9. Skipper Says:

    @mb

    The downside is that their petulant obstruction, as Ed said, could give the White House and the senate to the Democrats. They're taking a monstrous gamble.

  10. RosiesDad Says:

    If Hillary or Bernie win the White House in November, we can the look forward to a 6-3 left leaning court for about 20 years which would not suck.

  11. Mo Says:

    If centrist corporate type Srinivasan is the likely nominee, wouldn't our corporate oligarchs start making some offers certain Senators couldn't refuse?

    Our gov isn't run to benefit Republicans, after all – it's run to benefit the 1%. Who are Bircher libertarians first, Republican merely because the GOP is a handy sock puppet.

  12. catbirdman Says:

    "These are petulant people playing to an audience of morons." Can it be put more succinctly and accurately?

  13. c u n d gulag Says:

    Just to fuck wid 'em, I'd love to see President Obama nominate Anita Hill.

    Then, after Clarence Thomas' head explodes at that news, President Obama can fill a 2nd SC seat!

    Hence, a 6-3 liberal majority!!!

  14. eau Says:

    What Mo said.

  15. Scott Says:

    Well, they could stall and stall, and lose the Senate AND the White House, and then the new President could name, say, Cornell West for the vacant seat. Or someone equally head-exploding for Mr. McConnell.

    Seriously though, maybe I'm missing something but the Republicans have a 54-46 majority in the Senate, no? So why do they need to do an elaborate Kabuki of committee meetings, and stalling, and multiple question-and-answer sessions with the nominee?
    They can (or could have before McConnell shot off his mouth) smile and smile and go through the motions at moderate speed, and even call actual votes, and then defeat every nominee Obama sends them. They would appear to be doing their jobs, and they can't lose. There'd have to be 4 Rs who don't care whether they keep their jobs next year for Obama to win.
    Or are there actually 4 or 5 honorable Republicans who might vote for a qualified nominee?

  16. HoosierPoli Says:

    Very well stated, Ed. Refusing to deal now represents a faith in their prospective presidential candidate that is most charitably described as "totally delusional".

  17. Talisker Says:

    The Senate Republicans may attempt to have their cake and eat it, by waiting until after the election.

    Suppose the GOP get their nightmare scenario, of an incoming President Sanders and loss of the Senate. They could then turn around and insist that the lame-duck Senate confirm Obama's compromise nominee before inauguration, because reasons. Of course it's totally inconsistent, but since when do they care?

    This being the case, they may be willing to gamble they will win the White House and/or keep the Senate.

    Contrariwise, if some Republicans have lost their seats anyway, Obama might prevail upon them to support his nominee in the lame-duck session — assuming that (a) Hillary or Bernie is the new President-elect, and (b) the arithmetic in the incoming Senate does not favour a more liberal nominee. Vote for his candidate, and instead of an ex-Senator you can be the new Ambassador to Fiji or whatever.

  18. wetcasements Says:

    We're getting pretty meta here, but at the very least Scalia accomplished something important — a Democrat not voting for Bernie or Hillary out of spite come November (what we used to call "PUMA"-ism) is a complete fucking asshole re: abortion rights, ACA, etc.

  19. Talisker Says:

    A more brutally honest view is that they have a terrible field of candidates, none of whom can even get the Republican primary electorate to get behind them, who would be a substantial underdog in the general election.

    Just so. If a not entirely terrifying candidate such as Rubio or Kasich emerges from the primaries, and if the Democrat stumbles a little, and if Trump doesn't split the right-wing vote by running as an independent, the GOP might have a chance. But still not a great one.

    And that scenario isn't very likely. Trump and Cruz are still the frontrunners, and I'm pretty sure either of them would be destroyed by Hillary or Bernie.

  20. Lit3Bolt Says:

    Shorter GOP: We'll show you Dems! We're gonna make this election about Roe vs. Wade, Voting Rights, climate change, gay rights, immigration, and Affirmative Action! And campaign about it heavily in Pennsylvania, Florida, Ohio, and North Carolina!

    Democrats: Um, ok.

  21. Katydid Says:

    "One legitimate point in favor of the "no confirmation" argument is that the Republican Party of 2016 is completely unaffected by logic or historical precedent." Yeah. Furious toddlers. It's really stunning how any adult in America considers themselves a Republican. I've been getting a lot of emails from non-USA'ian friends and customers all asking, "Is this some sort of demented performance art?" and I have to conclude that no; Rill Murikuh really *is* that petulant, childish, and stooopit.

  22. Katydid Says:

    @Gulag; nominate Anita Hill? I like how you think, man.

  23. The Palace Cat Says:

    To do:
    1. Form band named Furious Toddlers
    2. Release hit single titled "Is This Some Sort of Demented Performance Art?"
    3. Profit!

  24. Hazy Davy Says:

    What Skipper said. In addition, by telegraphing their move, that encourages the POTUS to nominate someone they *wouldn't* otherwise have approved. This is his Goodwin Liu opportunity.

    As Geoff notes: no real change to the expected SCOTUS positions, in the interim.

    GOP antics ensure Democratic wins of the WH and Senate majority.

    HRC appoints someone they wouldn't have approved, anyway.

    The only consequence to their transparent obstruction is ensuring Democrats win.

  25. Noel Says:

    Don't count out the Reps winning – here is a nightmare scenario: Trump is nominee – there is a 9/11 type attack or failing that a Koch brother' funded Reischstag fire and Bingo the new American Bund wins – even Jeb! Might win – he could wrap the flag around himself and carry the day promising the resurrection of his brother's crew that "kept us safe" – premember the yahoos booed Trump's Irag war truth telling!!

  26. Scalia | Beware The Man Says:

    […] tend to come down on this side of what will happen in the process to replace Nino as opposed to this view, with the caveats that a lot of things can change in 10 months and even the modern GOP has not […]

  27. jharp Says:

    God works in mysterious ways.

  28. Bernie Says:

    @Chicagjon2016

    What is the color of sky in your little world?

  29. Jimcat Says:

    @ Noel:

    I can see another nightmare scenario that doesn't require a random event. Sanders gets the Democratic nomination, Cruz gets the Republican nomination, and Trump and Bloomberg run as independents. With the vote split four ways, no one gets a majority in the Electoral College, and the House of Representatives votes in President Cruz.

    Low probability of occurring, but maximum potential for "interesting times".

  30. doug Says:

    nicely done. thanks. get your popcorn out, gonna be a show…

  31. Khaled Says:

    @Jimcat:

    That's a very likely terrible scenario, but I would think that someone would end up with an electoral college majority out of that four way race, I don't see Bloomberg winning enough votes to keep Sanders from picking up a number of states while I can totally see Trump stealing enough votes from Cruz to hand a number of states to Sanders.

  32. anotherbozo Says:

    I frequent this place for informed (snarky, profane and funny) comment, but rare, rare is the time I come away heartened. Thanks for the uncharactertistic good news, Ed.

    The downside is that Obama will all too willingly compromise the hell out of his preferences for a candidate and present the judicial equivalent of Joe Lieberman. I like the idea that Charles Pierce floated: Anita Hill.

    Or the judicial candidacy offered, should it come to that, by the next President, i.e. Hillary or Bernie, to wit: Barack Hussein Obama.

  33. anotherbozo Says:

    I frequent this place for informed (snarky, profane and funny) comment, but rare, rare is the time I come away heartened. Thanks for the uncharactertistic good news, Ed.

    The downside is that Obama will all too willingly compromise the hell out of his preferences for a candidate and present the judicial equivalent of Joe Lieberman. On the other hand, I like the idea that Charles Pierce floated: Anita Hill.

    Or the judicial candidacy offered, should it come to that, by the next President, i.e. Hillary or Bernie, to wit: Barack Hussein Obama.

  34. mothra Says:

    Heard Orrin Hatch this morning on NPR blabbering the most inane nonsense and the reporter seemed almost frightened to point out that Hatch was blabbering insane nonsense. Let Hatch get away with stating that it was perfectly normal to suggest that a president with 11 months left to his term should be prevented from nominating anyone for Scalia's seat. When timidly pressed, Hatch said "this is the Democratic Party's fault! They blocked Bork! They tried to block Clarence Thomas!" I presume he then went on to throw himself on the floor and scream and kick his legs.

    What never ceases to surprise me is how the mainstream media just lets the Republicans define the terms of any argument–treating the most ridiculous dreck as serious discourse. Really, media? You can't find out –or point out that the Republicans have just created a new fucking rule? Really?

  35. JustRuss Says:

    @ Katydid: I try not to talk politics with my conservative friends, but it did come up the other day. They acknowledge that the Republican field is horrible, but claim Bernie and Hillary are worse. Because Socialist, and Hillary is pretty much the devil incarnate. Nice job Fox.

  36. bb in GA Says:

    Again over and over…

    US adult population about 245 million

    Average Fox News prime time – 1.8 million viewers/hour

    'Best Program' between 2 and 3 million viewers

    Talk Radio (led by RHL III) about 7 million/day

    Get over Fox successfully demonizing or lionizing ANYONE….

    //bb

  37. sluggo Says:

    The real problem here is Global Warming.

    There is no way that much Scallia fat can hit Hell below us all at once without causing a massive grease fire cooking the Earth once and for all.

  38. Isaac Says:

    Well, toddlers are sometimes irrational, but at least they eventually respond to pain, hunger, or having their pants full of shit. Republicans just keep squishing the turds through their fingers and rubbing it on their faces day in and day out because that is The Way Things Ought to Be.

  39. bb in GA Says:

    I think many of y'all are trapped in your cartoon version of the Rs. I think they are still reeling in the R establishment (of which Majority Leader Sen MM is a member) from what Mr Trump is doing to their party.

    I believe Sen M's unwise declaration about non-consideration of any SCOTUS nominee is driven by a need to show that the Establishment has brass balls and they are as big as Mr. T's

    Jeb spent $36 million (I think cumulative) between IA and NH and they only show squat for their trouble.

    I think they are all about to lose it….

    //bb

  40. Katydid Says:

    @Russ; oh, yes, talking to conservatives…my co-worker, a 20-something woman, said recently that she would never vote for a woman president because they (whisper) *have periods*, thereby making them irrational and unable to make decisions. I asked her if SHE was also irrational and unable to make decisions, and she informed me she was offended I would say such a thing to her. Dealing with conservatives is often like going to a tea party in Wonderland.

    @BB: Fox Noise has been libeling Hillary Clinton since 1992. The filth they spewed about then-12-year-old Chelsea Clinton was equally wrong and equally offensive. Own it.

  41. Pennelope Pennebaker Says:

    "These are petulant people playing to an audience of morons."

    Wonderful! I shall borrow it.

  42. Ohio Mom Says:

    Katydid Says: my co-worker, a 20-something woman, said recently that she would never vote for a woman president because they (whisper) *have periods*, thereby making them irrational and unable to make decisions.

    Has this co-worker of yours every heard of menopause? I think it's a very safe bet that Hillary hasn't had a period in well over a decade. Maybe you can find a pamphlet at the doctor's on "Your change of life" for her.

  43. bb in GA Says:

    @katydid

    …typical Left knee-jerk

    I am not a FOX apologist. Nothing to Own

    I am appealing to the numbers, not surrendering to the emotions of your likely true list of grievous episodes…..

    …and uh I think FNC's launch was in October 1996 (maybe Mr. Ailes started personally libeling HRC in 1992)

    //bb

  44. mago Says:

    Gee whiz mom, who sparked the tempest in the tea pot? Can I go pee now?

  45. Mo Says:

    I think they are still reeling in the R establishment (of which Majority Leader Sen MM is a member) from what Mr Trump is doing to their party.

    Can't think of more deserving people to have their party spoiled.

    Am hoping they cry if they want to.

  46. Lless Says:

    They will hold out on their odds of holding the Senate. The hearing will happen probably late enough that they only have to go through the Kabuki process of a No vote once. The shell game no one is getting involves the Senate majority. If they don't get the Presidency, the stonewall goes on. We are in a new partisan era. The old fictions about Court neutrality have blown up with no small contribution having been made by the Roberts Court itself. The backlash of holding out for political advantage will prove non-existent. In fact, I predict that the pro-life voters will be called to the ramparts in November after Kennedy nixes those phony building codes in Texas. This is a stalemate for the long haul.

  47. Katydid Says:

    @BB, others have argued this with you and I suspect you're being purposely obtuse. When Fox is the news station on in car repair shops, doctor's offices, dentist's offices, hotels and airports, the views from captive audiences are far higher than the numbers would suggest. Its ubiquitity in public spaces mean that the low-information, easily-led authoritarian followers are constantly bombarded by its message, which is carefully crafted to suck in the gullible.

  48. Katydid Says:

    @OhioMom; you can't sway conservatives by providing them silly things like *facts* and *truth*. They know what they know, and they will dutifully recite whatever their thought leaders tell them to!

    P.S. The sheer internalized misogyny is what took me aback.

  49. HoosierPoli Says:

    bb: The cartoon version of the Republicans has become the reality. Liberals didn't make Republicans go batshit insane and lose all touch with the planet Earth (or cower in fear of those members who have). No liberal imagination ever could have dreamt up a character as ridiculous as Sarah Palin, and she's now dead center in the middle of the party politically.

  50. HoosierPoli Says:

    Oh man, let me just contemplate this: We could get a Dem house and a Dem president, and replace Scalia, Ginsburg, and Breyer with solid left-leaners…we'd be tantalizingly close to a 30-year liberal majority which would kick ass.

  51. Edward Says:

    The U.S. economy could tank before November, which might allow the Republicans to win the elections, depending on who the voters blame for the crisis. We may also be in a war with Russia, given our actions in Syria and elsewhere.

  52. ScrewyCanuck Says:

    Obligatory supererogatory link to first 50 comments… :D

  53. Leon Says:

    Screwy Canuck, very much appreciated in the link. How would the lay tacolyte get to the first fifty on their own. Also, Ed, could you get WordPress or whatever stop hiding the first fifty-we aren't rolling over the odometer, you're just a popular blog (not calling you a blog, but you know what I mean).

  54. ScrewyCanuck Says:

    @Leon, the route to the previous fifty comments was a matter of guesswork, having seen the pattern of URLs on other WordPress sites. Basically just add '/comment-page-1' at the end of the post's URL (ignoring the '#comments' bit). I'm just doing our group the favor of pasting in a quick link until our gracious host finds a workaround. I imagine just changing the pagination from 50 to 100 would go a long way…

  55. Leon Says:

    I am in your debt.

  56. Beleck Says:

    yes thanks a lot Screwy Canuck. to see all the messages is important. Trump is the best R candidate yet. and the R's are aghast their own Frankenstein has arrived to hopefully kill them off. at least after 50 years of hate, they will get a taste of their own/payback is nice.