Supreme Court opening offers window to party unity
Last Saturday, Supreme Court Justice Antonin Scalia passed away unexpectedly in his sleep. His last words were unknown, but they were probably scathing. Scalia, appointed by Ronald Reagan in 1986, was one of the most conservative members of the Court and its most passionate advocate of an originalist reading of the Constitution.
His death, like his life, is full of political controversy because his vacancy throws the ideological balance of the court into uncertainty. Less than an hour after news broke of his death, Senate Majority Leader Mitch McConnell (R-KY) put out a statement saying that the Senate would not move forward to confirm any replacement that President Obama nominates. After years of Republicans in the Senate stalling Obama’s judicial nominees, this is shaping up to be the bitter end to years of partisan divide. The final showdown.
But I want to suggest an alternative path. Instead of Republicans and Democrats in the Senate throwing sand in each other’s eyes over Justice Scalia’s replacement, instead of this being the partisan climax to seven years of ideological strife, Justice Scalia’s death is an opportunity for both parties to come together and nominate a consensus candidate to the Supreme Court. In so doing, they can signal hope that Congress can get something done, that the parties can work together, that the Constitution is bigger than party affiliation.
Both parties have something to give, both parties have something to gain. That’s a strange and exotic formula called (gasp) “compromise.” What Republicans have to give is clear: the decades of a conservative majority on the court are over. They can cry and scream like a toddler who just heard the words “living constitution” for the first time, but they can’t beat their fists against the floor forever.
What Republicans have to gain is a political victory, or at least they’ll avoid a political nightmare. Seven years of obstructionism have taken a political toll on the Republican party. The party is fractured against itself and deeply unpopular with the general public. The party has a tough election year coming up: 24 Republican senators are up for reelection compared with just ten Democrats. At least five of the Republican seats are very vulnerable, and Democrats tend to turn out more during a presidential election. If Senate Republicans spend the last year of President Obama’s administration amplifying their obstructionism to an unprecedented level, they will pay the price electorally: they will lose the Senate, and they will guarantee another Democratic president. And guess what? A Democratic President and Democratic Senate are going to place on the Court a justice far more liberal than the type of Justice that President Obama can hope to nominate.
What Democrats have to gain is clear: a third Obama nominee to the Court and the first liberal majority on the Court in decades. We are one justice away from a sensible liberal majority on the Supreme Court. We are one justice away from overturning Citizens United. We are one justice away from ending the death penalty. We are one justice away from remembering that the phrase “well-regulated militia” is written in the Second Amendment.
What Democrats have to give is hope of replacing Antonin Scalia with a justice who makes Ruth Bader Ginsburg look like Ronald Reagan. It’s not going happen. Instead, Democrats have to stand behind a consensus candidate, a moderate who won’t throw the balance of the Court wildly to the left, but will instead bring it into equilibrium, with four conservatives and four liberals on either side. That is true balance, and President Obama is in a position to make it reality.
If you’re anything like me, you’re tired of a dysfunctional Congress. As college students, we’re in our late teens and early twenties. Harsh partisan division is the only thing most of us have ever seen since we’ve started paying attention to politics. Republicans have to act like adults and come to the table, rather than shooting spitballs at the table from the corner. Democrats have to make room at the table and be willing to put seven years of Republican spitballs behind them. Congress has a choice to make over the next eleven months. Will Antonin Scalia’s death be a turning point for the worse or for the better? The cynic in me tells me that it will be for the worst, but the optimist in me is still holding out hope beyond hope that there’s such a thing as bipartisanship.
Justice Scalia loved the Constitution. He spent his life defending his skewed perception of it. The Constitution is clear about what happens now: the President nominates a successor, and the Senate gets to “advise and consent.” If Obama nominates a qualified, unifying candidate, it is incumbent upon the Senate to confirm him or her. To do anything else would mar Scalia’s legacy and dishonor his life of service.