Less than 24 hours since the Scalia fell from our eyes, there has already arisen a tidal wave of commentary on the Strindbergean dance between politics and the judiciary, with particular reference to how the former will affect the latter. But the reverse is true, as well.
When the Anticonstitutionalist Cabal (aka the GOP) refuses to hold a vote on Obama's nominee -- no matter who that turns out to be
-- the impact will be threefold.
First, it will lock the legal status quo of the country in place. No precedents will be set for at least the next year, for good or ill, left or right. U.S. Circuit courts
will have the final say for the particular parties to any litigation, and the Constitutional implications will hang fire. I guess you can't get less judicially activist than that.
Second, it will dramatically nationalize the November elections for the Senate. The presidential race, of course, will already be nationalized -- but the fact that the ideology of the Supreme Court for a generation will literally hang in the balance will certainly be a huge GOTV spur. But it transforms every vote for senator, too, because the Dems have to take back the Senate in order to bring a nominee to the floor. (Put aside, for the moment, the question of whether the GOP will try to filibuster for four years -- or what such an attempt would do to the Senate elections in 2018, 2020 and beyond.)
Overall, this is great near-term electoral news for the Dems. The prospect that Roe v. Wade could be overturned... that further erosion of the Civil Rights Act might occur... that further empowerment of capital and money-as-speech will be afforded... all of that will bring millions of women, African Americans, Latinos and progressives to the polls. All of these young women, for instance, who think that Hillary is yesterday's news will suddenly find her a lot less boring.
On the darker side, the unexpected passing of the Snark King of American jurisprudence offers the rightwing radicals yet another institution to throw into Grover Norquist's drowning tub. And that, of course, will have the ironic result of making the one remaining branch of government that's actually functioning even more imperial.
Finally, perhaps for the first time in American history, we're having not just a SCOTUS nomination fight, but a SCOTUS election -- with unknown candidates.
Who says our democracy isn't dynamic?
A few more thoughts on how this bolt from the blue changes the political landscape:
It guarantees that a lot of attention will be focused not just on the race for the GOP nomination, but on the current Republican senators. The candidates will, of course, continue their bombast about who must replace Scalia and how the President of the United States must not be allowed to subvert the Constitution by performing his Constitutionally mandated responsibilities. But the actual actions -- the things that will make news -- will be being carried out by McConnell & co. That will cement the link between the candidates and the hated Congress, and thus provide a big fat target for Hillary to run against -- indeed, the very target she was in all likelihood going to aim at anyway. There will be fresh material every day for "We must not let the GOP take over the third branch of government." (And,of course, Ted Cruz and Marco Rubio will have to show up and vote.)
It may help Cruz. People in the base who are currently supporting Trump just because he seems tough on economic nationalism are likely to have their deep fears of culture war defeats revived. Put aside the fact that Trump is a circus clown... but his primary (pun intended) message is "It's the economy, stupid!" (And he really does mean "stupid.") The looming prospect of replacing Scalia at the Bridge with a godless, gay, transgender, gun-hating Antichrist, and those Trumpets and Trumpettes may rush into the arms of the Cockroach of God.
It also helps Hillary in her race with Bernie. It is a vivid reminder that income inequality isn't the only issue. Thinking about the Court causes every Democrat and Independent to think about civil rights, women's rights, LGBT rights, attacks on Obamacare, and so on. And, of course, it very powerfully raises the stakes. It makes the danger facing progressive values and gains visceral. An election that is shaped by fear of loss, rather than by fantasies of revolution, plays to Hillary's brand and strengths. Plus, we know from behavioral psychology that loss aversion is a much more powerful heuristic for humans than greed for gain.
Finally, it also reminds everyone of Obama's legacy. When the things he has done are threatened, it's much less likely that progressives will cavalierly say that the choice between the Dems and the GOP is no real choice. And if you feel the need to protect Obama's legacy -- and to do so by nominating the candidate who is the safest bet to win -- then you vote for Hillary over Bernie, on both counts.
A good case can be made that Hillary Clinton won the presidency last night, and that she will have a Democratic Senate, at least, with which to work.
Events, dear boy, events.
Of course, the GOP may short circuit all this by approving Obama's nominee -- SCOTUSblog guesses it'll be Loretta Lynch, btw. Such a betrayal by their own will certainly cause the Republican base's collective head to explode, but it won't create the GOTV utz for the Dems that I'm envisioning here.
However, what are the chances of that? What are the chances that the GOP Senate will allow that vote to happen? Every Republican Senator would be primaried by the Tea Party. Which would, itself, throw the party into even deeper chaos.
So let's assume the likely path forward is the one we'll see. And let's look at the field of battle for the Senate in that context.
Of the nine most competitive Senate races this cycle, according to Larry Sabato, seven are for a seat currently held by a Republican, two for a seat currently held by a Dem. Those are good odds to start. Now, here are the states in that group that typically lean Dem: Illinois (incumbent: Kirk,R), Wisconsin (incumbent Johnson, R) and Colorado (incumbent Bennet, D). Here are the toss-up states: New Hampshire (incumbent Ayotte, R), Florida (open), Nevada (open). And here are the states that Sabato has as leaning Republican: Pennsylvania (incumbent Toomey, R), Ohio (incumbent Portman, R) and Arizona (incumbent McCain, R). (I'd dispute his lean on PA, and maybe even Ohio.)
Of the Republican incumbents, I'd guess McCain and Portman are safe. But in an election that gets framed around protecting Roe and rolling back Citizens United, I would think the Dems would have a very good chance of knocking off Kirk, Johnson, Toomey and Ayotte. None of those states are culturally red. I'd say they also have a good chance of taking the open seats in Florida and Nevada -- depending, obviously, on who the candidates in those races are on both sides. Can the GOP knock off Bennet? Maybe -- but again, their odds have gone down with Scalia's death.
And then there are the states Sabato identifies as safely Republican. They include Louisiana and Iowa -- the states that elected John Bel Edwards governor, and Tom Harkin as senator, respectively. They also include North Carolina and Alaska (where the governor, Bill Walker, ran as an independent by merging his campaign with that of his Democratic opponent, who became Lt. Gov.). Seems like there's at least some opportunity there, too.
Meanwhile, there isn't a single state Sabato identifies as reliably Dem where a Republican senate candidate has a whisper of a chance: Vermont, Washington, New York, Oregon, Hawaii, Maryland, California, Connecticut.
Overall, the chances of the Dems taking back the Senate look quite decent. They need a net pick-up of four, if Hillary wins and her VP casts the deciding vote.
Re McConnell & co allowing a vote? Guess not
Let the SCOTUS election begin!