Editor’s note: This op-ed is by John Fairbanks, a Vermonter currently living and working in Washington, D.C.
[S]en. Richard Shelby, R-Ala., chairs the Senate Banking Committee, one of the most powerful (and, for senators’ campaign war chests, lucrative) positions in Congress. On Jan. 29, he announced his committee would be suspending its business, including considerations of Obama administration nominations, until late next month.
The reason he gave was not a tirade against Obama and the dangerous liberals he was sure to send to the Senate for confirmation. Sen. Shelby, a shrewd and stately man, is not often given to tirades. Instead, Sen. Shelby remarked, “I have a primary, you know.”
Sen. Shelby, 82, has held his Senate seat since 1986 when, running as a Democrat, he very narrowly defeated one of the Reagan senators elected in 1980, Jeremiah Denton. He won re-election as a Dem in 1992, but switched parties after the Republican mid-term tsunami of 1994. After defeating Denton, Sen. Shelby has never won less than 63 percent in an election. He has more than $19 million in his campaign coffers. Nonetheless, he’s worried.
He is not alone among Senate Republican incumbents, which probably explains, in significant part, the majority’s swift and bellicose response to the recent passing of Justice Antonin Scalia. Within nanoseconds, it seemed, of the news of Justice Scalia’s death, Majority Leader Mitch McConnell had thrown down the gauntlet, announcing, “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
The majority leader’s statement apparently dismisses the fact the American people have raised their voice, twice, and elected Barack Obama as their president. Elections, as Dick Cheney once pointed out, have consequences.
In case you were wondering about how a Supreme Court justice is nominated, the relevant passage in the Constitution — Article 2, Section II, second paragraph — reads thus:
“[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law …” Nothing in there about when this happens in a president’s term or, more on-point here, election cycles.
Even if the Dems have a big night Nov. 8 and get a president as well as retake the Senate majority they’re not going to get to a filibuster-proof 60-seat majority.
I guarantee the great majority of Americans could not have identified Antonin Scalia prior to his passing, but now, the Supreme Court is an election issue.
Scalia’s death presents both sides with a hugely important opportunity. For Republicans, getting a like-minded replacement is critical to maintaining their current 5-4 majority on the court (although Justice Kennedy sometimes sides with his colleagues Justices Ginsberg, Sotomayor, Kagan and Breyer, and Chief Justice Roberts has, on a couple of occasions, outraged conservatives with his votes. Republicans had previously been looking forward to that majority dealing blows to unions, reproductive rights, affirmative action, and one-person-one-vote (Evenwel, of which I have written before on these pages). With a likely 4-4 split on the court, those cases all revert to the most recent lower-court decisions. In the case of unions and voting rights, those lower-court decisions went liberals’ way.
For Democrats, filling Justice Scalia’s seat with a moderate-to-liberal justice would tip the majority their way. Note: all the rumored names for Obama’s pick are moderates.
Another factor is the distinct possibility the next president will make as many as three Supreme Court appointments. Justice Breyer is 77. Justice Kennedy is 79. Justice Ginsberg turns 83 next month.
Which brings us back to the United States Senate and this year’s elections. Some have argued Majority Leader McConnell may have made a tactical mistake by not compromising with the president, or, at least, allowing the president to make his nomination, stall on it until after the election, then, with a sigh, say, sorry, this one’s just not up to snuff.
I’m not so sure. Even if the Dems have a big night Nov. 8 and get a president as well as retake the Senate majority — they need a net pickup of five seats — they’re not going to get to a filibuster-proof 60-seat majority. So the Rs can simply talk to death any nomination they choose, unless the Dems come up with another parliamentary maneuver to cut off filibusters of Supreme Court nominees, as they did with lower-court appointments. I don’t see how giving even an inch benefits the majority leader. He and his caucus need, at the moment, to be a obstructionist as possible to placate a lot of the party faithful, hold off primary challenges from the farther right, and perhaps whip up that same faithful to come out to vote lest America fall into the clutches of Hillary Clinton or Bernie Sanders.
Dems, for their part, will seize on that truculence to build fires under their own faithful as well as appeal to independents they probably calculate will take offense, as well.
The stakes, friends, have gone through the roof.
