By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.
Generals don’t tell the enemy where they are going to attack. Boxers don’t tell their opponents where they are going to punch. But Republicans told President Obama and the Democrats exactly what they were going to do about the U.S. Supreme Court vacancy, and because of that, they may have increased the chances Hillary Clinton will be the next president.
After Justice Antonin Scalia passed away, Republicans quickly declared that Obama might as well not nominate a successor because the Senate won’t confirm him or her anyway. Senate Majority Leader Mitch McConnell, R-Ken., said the seat “should not be filled” until the next president takes office. Most of the party’s presidential candidates made similar statements.
That was a political mistake. Now, Obama has the high ground. He can make this a contest between himself and McConnell, who’s not exactly an electrifying figure. The “executive order president” can paint himself as the defender of the Constitution. He’ll do his constitutional duty in nominating a successor; now will Republican senators do theirs and give a fair hearing to the nominee?
Moreover, now he knows the Republicans’ strategy, but they don’t know his, so he can plan his next move accordingly.
For example, he can nominate a female with a long list of accomplishments, maybe even a military record. If Republican senators refuse to give her a fair shot, or even treat her poorly, then Clinton can spend the rest of this election talking about those obstructionist Republicans keeping glass ceilings above women’s heads. That message will resonate in an electorate where Obama won women by 12 points in 2012, according to Gallup. In that same election, Republicans won men by only eight points, and more women vote than men.
In addition to the vacancy, three justices – Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer – are at least 80 years old or getting close. So the irony is that to keep Obama from nominating one justice, Republicans likely have given Clinton an issue she can use to win and have the chance to nominate four.
What Republicans should do is praise Scalia as a strict constructionist who believed the Constitution means what it says it means, and that they will honor him by insisting that Obama’s nominee follows his example. If Obama nominates someone too liberal, they can expose that person’s record and make voters more uncomfortable with Clinton’s potential nominees. By then it will be late spring, and then Republicans can plausibly make the case that, at that point, we might as well wait for the next president.
On the other hand, Obama wants to appoint a Supreme Court justice at least as much as he wants Clinton to win, so maybe he will nominate someone Republicans can live with. Some senators might decide they’d rather confirm his nominee in his last year, rather than take their chances on Clinton winning and nominating someone in her first. Republicans, after all, control the Senate now. Next year, they might not.
I can think of three reasons Republicans tipped their hand so clumsily. One, many of them viscerally, emotionally dislike Obama, and people in that state of mind make mistakes. Two, it’s a presidential year, so the party’s focus naturally turns to candidates trying to get elected by appealing to the party base, and away from those trying to run a government. And three, they did it because they had no choice. A beast has been created these past eight years that must be fed anti-Obama red meat at all times. Had Republican leaders played their cards a little closer to their vests, that beast would have been angry.
Let’s not overstate this. Republicans made a bad move, but not a fatal one. It’s a long way until November, when the election will be decided mostly by the actual nominees. Since Obama was elected, Republicans have gained or solidified control of both houses of Congress, a majority of state Legislatures, and a large majority of governor’s mansions. They must be doing something right, politically.
But now, for the first time in a long time, they do not have control of the Supreme Court. It’s now 4-4, which means we’re looking at a lot of deadlocked votes. Let’s hope Republicans walk back their previous statements. The president should fulfill his constitutional duty, and they should fulfill theirs.