Home National Politics Points of Strategy for the Scalia Replacement Battle

Points of Strategy for the Scalia Replacement Battle


In a few days, I will be posting a piece that argues that –with their unprecedented declaration of their unwillingness to allow the president of the United States to name a justice to fill a vacancy on the Supreme Court — the GOP has provided us a most opportune battlefield. Refusing not just this nominee or that, but ANY nominee.

It is opportune, I will argue, both because the stakes are so high (control of the Court) that it warrants bringing all our forces to bear, and because this egregious Republican move opens a door that exposes the GOP for the atrocity it has become — an exposure that could do wonders for Democratic chances in this election year.

In the meanwhile –taking it as a given that this is a battle well worth fighting — I would like to make three points about what the strategy for this fight should be on the liberal side.

1) No one on the liberal side should talk as if it is a fait accompli that the Republicans will not confirm any nominee from President Obama.

I’ve heard some liberals speaking as if of course anyone the president sends up will be an automatic non-starter. Of course, the Republicans will block any appointment. That kind of talk is deadly to the cause. It accepts what must be continually portrayed as unacceptable.

The Republican position is outrageous, and talk about it should be infused with outrage. The public’s attention should be relentlessly focused on the point that this conduct is unprecedented, that it violates American political norms and traditions, and that the Republicans will disgrace themselves if they prevent the Senate from doing what the Senate has always done.

To the extent that any mention is made of the possibility that the Republicans will not repent and do the right thing, the talk should be about how this naked power grab — this refusal to accept what the voters decided when they re-elected this president in 2012 — should be punished by the American people at the ballot box in November.

2) The liberal side – both the political leaders and the activist public – should not confine its demands to holding hearings and casting votes. It should insist also that this president, like every president before him, gets a person nominated by him on the Court.

Insisting only on hearings and a vote would be a grievous error, enabling the Republicans to succeed in their original nefarious intention. Why limit the demands in a way that would allow them to conduct a sham, going through the motions of a confirmation process with the foreordained outcome that the vacancy will remain unfilled in order to give the Republicans a chance to get their own guy into the White House? The demands should include acceptable results in fidelity to the enduring American tradition.

The position should be that while the Republicans have the right to reject a specific nominee for appropriate reasons – as the Democrats rejected Robert Bork for being on the extreme fringe of conservative jurisprudence – they do not have the right to reject all nominees just because they don’t want this president to be able to exercise his constitutional responsibilities and powers.

If President Obama puts forward a worthy person, the Senate is obliged (even if not legally required) to confirm—just as has been the practice throughout American history, including recent times, when (quoting now from an article on slate) “majority-Democratic Senates confirmed John Paul Stevens, William Rehnquist, and Anthony Kennedy after nominations by Republican presidents that were made less than a year before an election.”

The mantra should be: The president has always been allowed to fill such vacancies, and there is no legitimate reason why this president should now be denied this right.

All public attention should be focused on the question: is the person President Obama has nominated worthy of confirmation?

3) This focus has important implications for whom the president should nominate: President Obama should nominate that mainstream liberal jurist whom the public will see as most clearly worthy of being confirmed.

Pundits have laid out a variety of ways the President should go. One of the main directions has been that he could put forward a nominee from some historically under-represented group like women, or Latino, or African-American. The idea is that this could fire up of some part or other of the base to come out and vote in November.

I think going that route would be a big mistake.

President Obama has already placed two women on the Court, one of them of Puerto Rican background. At the same time, the Republicans are in the process of alienating all those under-represented groups so flagrantly that it should easy enough for the Democrats to motivate them to go to the polls in the coming elections.

Obama’s strongest move would be a gesture not toward some minority group, but to the broadest American public. For it is that broad public who will decide the outcome of this battle — either by compelling the Republicans to relent, or in punishing the Republicans in the elections.

The purpose of President’s Obama’s choice should be to maximize the number of people who will be offended if the Republicans fail to confirm.

My advice to the president, therefore, is this: nominate the most impressive, moderately liberal white male jurist available.

In the present battle, playing for minority votes would be counter-productive. It would put the nomination into the dynamic playing out in America, where whites – and especially white males — are having to adjust to an America in which their historic dominance is slipping away.

The most impressive possible, moderately liberal white male jurist will do the most to compel the Republicans either to allow a good Obama nominee onto the bench, or to suffer maximal political damage in the elections (for control of the White House, and of the Senate) in punishment for their obstructionism.

I expect that some will objective that historically the white male has been massively over-represented on the Court and other positions of power in America. But we are now in a particular situation – a conflict in which the stakes are enormously high – and the important thing here is to end up with a Court that breaks the conservative dominance over the Supreme Court, which has already done so much damage to the nation, and to punish the Republicans for their ongoing outrageous and unprecedented behavior.



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