Month: February 2016

So now Republicans are backing off a bit. President Obama announced in mild tones that of course he'd nominate someone—that's what the Constitution tells him to do—and Republicans are kinda sorta saying that they'll hold hearings after all. If they do, they've probably dodged a bullet since most of America isn't really paying attention yet. The next stage in this PR battle is up to Obama: will he nominate someone who's scrupulously centrist and well qualified? That would rack up some points for Team Liberal in the battle to seem most reasonable. Will Republicans then run hearings that are at least tolerably efficient and fair-minded? That would rack up some points on their side. Roughly speaking, every statement or action by anyone in the Supreme Court fight should be interpreted as a shot being fired in the underlying PR war. Most people won't care about this—they're already firmly on a team—but there's a small sliver of voters in the middle who do care, and they could make the difference in November. For that reason, it's worth it for each side to try to rein in its extremists and put up a show of being the most reasonable. Democrats have the early lead right now, but they won't necessarily keep it. After all, they have a base to keep happy too.

The bigger part of the advantage that the President and Democrats have is the actual fight over the nomination and confirmation process. Say the President nominates someone like Sri Srinivasan, who was confirmed to the DC Circuit by a 97-0 vote of the Senate in 2013. Among those 97 Yea votes were those of Sens. Cruz and Rubio, as well as GOP Leader McConnell, all calling for the current President to abdicate his Constitutional responsibility. What will people who have already voted for a judge to be on the federal bench say as a reason to oppose the same judge that won't sound political and hollow? The funny part is that the President doesn't even have to nominate a consensus candidate like Srinivasan to paint the Republicans into a corner. Republicans have already helpfully handed the President all he needs to paint their opposition to his eventual nominee as political and not substantive with their incredibly shortsighted to demand right away that President Obama stay away from nominating a new Justice. There is no way they can stop the president from exercising his Constitutional power, and because they have shown their hands early, the President and Harry Reid can easily frame any Republican attack against his inevitable nominee as spite rather than any serious concern on jurisprudence. Once painted into a political corner, Republicans may well have to back down from their initial stand just to get out of that corner. Harry Reid, I am certain, has other tricks up his sleeve to frustrate the Republican leadership by essentially ending the Senate's business until the President's nominee gets a vote. He could use executive sessions (the motion is non-debatable) to halt business, block unanimous consent requests for short breaks or recesses, and pull every parliamentary maneuver to make Republicans go on record. Even worse for the GOP, by constantly asking for procedural votes on the nomination, he can force Republicans to show up and be on the Senate floor. And no Democratic Senator will pay a political price for standing with Reid and President Obama on this. It will be like the GOP's government shutdown, part deux. Democrats will coalesce around the Constitutional principle of giving the president's nominee a vote, and Republicans will be seen as the party of destruction, endangering the very operation of government itself. And this time, there won't be a malfunctioning website to go after when it's done. The political cornering of Republicans will be especially important because this is an election year. The longer Republicans drag out this fight, the more it will galvanize an electorate favorable to the Democratic party.

THE BUZZ AT THE CAPITOL: “Some hopeful Democrats now see the nomination of a sitting senator as the best chance Obama has to seat another justice on the Supreme Court before leaving office,” Juliet Eilperin and Paul Kane report. “There are several Senate Democrats who fit that description, including Amy Klobuchar (Minn.), Sheldon Whitehouse (R.I.), Christopher A. Coons (Del.) and Richard J. Durbin (Ill.). But individuals who have spoken with the White House about the nomination process … said the president is interested in a candidate who is young enough to serve an extended period of time. Only two of those senators — Klobuchar, at 55, and Coons, at 52 — are younger than 60, the age Justice Ruth Bader Ginsburg was when she was nominated.”