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How Republicans Can Win the Supreme Court Media Battle
“The only winning move is not to play.” — Joshua, War Games, 1983
The passing of Supreme Court Justice Antonin Scalia has changed the 2016 political landscape. There is bipartisan consensus on that point, and that point alone. What remains uncertain is how this will play out. But there is only one clear path for Republican candidates and senators: Starve the media of this story.
This much we know:
- Democrats will argue that President Obama should nominate someone, per his constitutional role, and they are correct. There is no reason for President Obama to unilaterally lie down and accept the certain fate of this vacancy.
- Democrats will similarly argue that Senate Republicans have a duty, even a constitutional duty, to give that nominee hearings and an up-or-down vote, and in this respect, they are wrong. There is precedent on the side of Senate Republicans, and even if you discount that, the language and intent of the founders is clear.
- Republicans will rightly point to Senator Chuck Schumer’s (D-NY) statement in July 2007, when he made absolutely clear that no high court nominee from President Bush would receive a vote in the final 18 months of his presidency. While no vacancy on the Supreme Court occurred, it is clear what Democrats intended.
- Democrats will claim “elections have consequences” or that President Obama was elected for four years, not three. This argument is really vapid. The 2014 Senate elections also, y’know, had consequences.
Here’s what both sides will or should do next:
Many prominent voices in the media want to label President Obama’s eventual nominee moderate, regardless of his or her ideology. So the White House will be looking to check three boxes to give the media the permission to do so: 1) Identity politics; 2) Republican approval in some other circumstance; 3) Some bipartisan experience.
One name floated often that meets these criteria is Sri Srinivasan.
As someone who could be the first Indian-American justice, the White House would have the identity politics they sadly use as a divisive tool at every turn. Srinivasan is also someone who has been unanimously approved by the Senate recently, albeit for dramatically different circumstances. And he is someone who the White House can claim has worked on both sides of the aisle, even if he was a political appointee for Democrats versus a low-level staffer in the Justice Department under President Bush.
In Srinivasan, liberals are already questioning his credentials from the left, which is an expected dose of insanity. This is not a fight for the next justice, it’s a fight for the next president, and both sides should view it as such.
In fact, President Obama should apologize to whomever he selects in advance, since he is taking someone who likely has realistic ambitions to serve on the Supreme Court and putting them in a position where that will certainly never happen.
The White House will start scheduling one-on-one meetings with Democratic Senators where the press is invited to hear from them about their productive chat and how Democratic Senator thinks “____ would be a terrific justice, and the Senate must act immediately to schedule hearings and give him/her an up-or-down vote.”
After the bilateral meetings dry up, it will be a constant call for a hearing and votes with other photo ops, statements, op/eds, interviews and empty chair props, etc.
So how should Republicans respond?
They shouldn’t.
This will be tough.
So tough.
But it’s the best option.
If asked about the credentials of a nominee, every Republican from presidential candidates to elected members of Congress should respond:
“We believe it is the obligation of the next president of the United States to nominate a successor to Justice Scalia. Such a dramatic shift in the balance of the court, so close to an election, should carry with it the voice of the people.”
And then … nothing else.
What does this statement do? It reminds people that the question here is whether you should replace a very conservative justice with a very liberal justice changing the current balance of the court, without speaking to anyone’s qualifications. It gives the people a role in this process. And it reiterates that there will be no movement among Republicans between now and November.
What does this statement not do? It does not argue the credentials of the nominee. To do that would be to give up a critical piece of leverage in how this portrayed in the media. Republicans must keep it a debate over a process, not a person.
This story must be starved of oxygen, because Republicans will be up against Democrats and their traditional foes in the press who clamor to argue that they are obstructionist or extreme, even when engaging in the same political behavior that Democrats get a pass for.
So, no statements, no meetings with the nominee, no hearings, no comment on his or her qualifications … no oxygen. Stick to the process. And make it boring.
Every side knows that we have already reached the conclusion of the debate. There will be no successor to Scalia nominated and confirmed under President Obama’s watch.
The question remains what impact it will have in November. Most voters have probably already lined up on one side of this. So the best strategy is to not to give anyone a new opportunity to shift against you.
For five years, President Obama has argued that he doesn’t need Congress and he has acted with reckless abandon to prove his point. Now, he needs them. Republicans should have no sympathy for his position.
Focus on winning presidential and Senate elections. The future of the court has always hung in the balance this November. Now, it is front and center.
There are more court vacancies to come and the only way to protect the constitutional liberties that conservatives hold true is to select a unifying and serious candidate who will provide down-ticket help and nominate conservative judges. (So, not Trump.)
Published in Politics
great idea. here’s hoping they can stick to the script.
Great post, and well said. It seems my friends with any political interest are pretty much progressives, so my facebook has been a huge argument. Good times.
Not bad.
But I’m trying to remember the last time Republicans were completely unified in their messaging during interviews. Asking politicians to talk less is a tall order. And you’re advising them all to stick to script during an election year — not just incumbents, but challengers as well.
Also, supposing it worked for a month or two, I wonder what the Democrats’ counter-strategy would be.
Perhaps the best aspect of your plan is that it justifies McConnell’s immediate response that no candidate of President Obama’s will even be considered. That might have been a costly misstep.
So many casual voters (people who aren’t constantly reading political arguments) are always demanding action, regardless of what’s on the table. Convincing them that a year-long stalemate is best could be a tough sale. But who knows what events (and executive orders) might arise to distract them?
The Republicans should emphasize the Senatorial obligation to advise the President’s choice. Under these unique circumstances, Scalia’s unique role on the court, the advice isn’t merely to inform the President’s choice, it is advice which must be heeded or consent will be withheld.
The first piece of advice is to consider letting the election decide. Now that’s not very persuasive, so tell him, “Hey, if it’s a Democrat maybe they pick you.”
The second piece of advice would be nominate someone who shares Scalia’s judicial philosophy. You could give him 20 names, but he’d quickly blow that off.
The third choice would be to suggest nominating an older Federalist Society member of Scalia’s generation who has done something the liberals like very much. Ted Olson (who will be 76 on this coming September 11) comes to mind. Litigator for SSM, sympathetic 9/11 widower, respected legal scholar. Hard for any Senator to vote against.
Obama will decline all of these options, but a good faith effort to “advise” will have been made. As you say, the Senate elections also count, and this is the last chance for McConnell’s majority to do what they’ve been elected to do.
They’ll fold, and Obama will nominate a reliable liberal fifth vote while people are so disgusted we might lose the Senate before Ginsburg retires or die.
It’s McConnell – all he knows how to do is fold while shouting he’ll fight again over his shoulder as he heads to the next hill.
I appreciate the thought you put into this, but I am also concerned about this:
In addition, the expected torrent of criticism against Republicans for “obstructionism” could be taken to heart and become a deciding factor for many undecided voters in November.
If the GOP is going to reject Obama’s nominee out of hand, then it will be necessary to give a reason. Americans of all stripes deserve that. In the absence of a coherent explanation you get this propaganda.
I think a case can be made based on Obama’s track record of bad-faith behavior in his relationship with Congress. I’m not suggesting impeachment, but a thorough explanation of Obama’s impeachable actions to date would be a good start. Lay it out coolly and calmly, keep it dignified, and above all make it clear to Americans that the Senate’s action in rejecting Obama’s nominee is entirely legal and ethical. Perhaps it could be seen as a reprimand for seven years of Presidential abuse.
If Obama and his defenders are going to fight for a nomination hearing on Conservatives’ turf (Constitutional obligations of elected officials) then the GOP has a duty to expand that conversation to include the guy in the White House.
Actually, they might could spend a dime on a PR campaign… ads… telling people that. Just a thought.
Yes. We cannot win a PR battle with the media, it is silly to try, so a pat answer to avoid making stories is right. Then write McConnel and tell him he’l be recalled, or tarred and feathered if he caves. If our candidate is Trump we have to regroup and think again. Perhaps a third party candidate of the Constitution party. Is there such a thing?
When the new Senate comes into office in January, can Obama try to shoehorn somebody is as a recess appointment by saying the Senate is ‘0ut of session’ between the old and new Senate? He has pulled similar shenanigans before.
Best idea I’ve heard yet. Will senate Republicans listen not likely.
McConnell stupidly reacted far too quickly after the Scalia announcement and instead of offering “no comment,” he set tongues wagging the usual, “see…the Republicans will block whoever the President nominates.”
Let it rest for a couple of days but start putting together a game plan begin the scenes…which in my opinion they should already in place.
But McConnell (and Reince for that matter) are poor leaders and are prime examples of why the base is so fired up this year. They haven’t learned and never will. I fully expect the Senate to cave with the usual comment..”we’ll wait until it’s something really important.”
Hello McConnell? It’s really, really important. Now.
I do not believe that there is anything to worry about until after November, 2016. If the Republicans in the Senate fold, they will be dead meat when they come up for re-election . . . and every last one of them knows that.
That having been said, the best strategy to follow is the one suggested in this piece. Do not discuss the nominee, do not take up the nomination. If asked, explain that it has long been the practice of the Senate not to take up nominees of a lame duck. Then, point to the resolution passed by the Democrats in the Senate in 1960. End of story.
Why? The system is rigged towards incumbents. The reason most of them are in office is because they have the ability to lie repeatedly and convincingly to their voters. They will pull the Lucy/football trick again and the GOP voters will end up flat on their back. The elections will be two to four years away for them, plenty of time for pork and graft and lies to lube up the voter’s memory holes.
This explanation may suffice for those who respect the Senate’s past practices and Eisenhower-era resolutions, but what about the majority of Americans who do not? I’m not referring only to those of the Left, but also the masses who aren’t interested in the finer points of governance. Are not those people likely to be drawn to the arguments and PR of the Left? How can that be prevented?
Quick, somebody send a copy of this post to all the GOP candidates, and to every GOP member of the Senate! So simple, yet so hard—and tell everyone who gets this we have LONG memories, and will be making a ‘hit list’ of anyone who deviates from this plan, thus allowing the Dems to get traction on fighting it. All the GOP candidates need to do ads featuring Schumer, Obama, Pelosi, and a bonus, SANDERS, and any comments they made while fighting against the nominees advanced by BUSH. Carpet the airwaves (I heard some choice clips of Obama on Levin’s show tonight). I’m fuzzy on the timeline—when was Clinton in the Senate?
McConnell can fight like a lion and a fox when he wishes to. No one in the Senate knows the rules and procedures as well as he, and no one can organize the party as well.
Take one dramatic example.
McConnell utterly foiled the left’s attempts in the summer of 2007 to force us into headlong retreat from Iraq. Reid couldn’t lay a glove on him. By the end of that year, Democrats were actually switching sides on the issue, whereas at the start of the year it looked as if GOP support would disintegrate. And recall that the GOP was in the minority then.
Do I trust that McConnell will fight now? No. But if he so chooses, he will beat back the Democratic jackals, keep them at bay, and leave them whining and crying with helplessness.
This offers the Republicans a strategic position but the problem has been that they only act tactically and they get beat when they try to play the Democrats and medias game. The only way to beat that is not to play it BUT, you have to have a strategy and so far they act afraid and reactionary to any and all suggestions.
There’s an old marketing adage; don’t be put in any position where you don’t already know the answers to the questions. You must control the message, especially your message!
BTW- the Republican equivocating has already begun-
Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican, didn’t rule out confirmation hearings and a vote by his panel on an Obama selection.
“I would wait until the nominee is made before I would make any decision,” Mr. Grassley said Tuesday in a conference call with Iowa radio reporters. “In other words, take it a step at a time.”
Asked whether he thought the controversy over filling the court vacancy might endanger his re-election chances this fall, Mr. Grassley said, “I think I have a responsibility to perform, and I can’t worry about the election. I’ve got to do my job as a senator, whatever it is.
AND
Sen. Thom Tillis, North Carolina Republican, voiced caution about blocking any Obama nominee automatically.
“I think we fall into the trap if [we] just simply say, sight unseen, we fall into the trap of being obstructionists.”
So this isn’t a fight so much as a difference of opinion… it always appears these folks don’t really know what’s at stake… but the Dems do!
Oh, one more counter to any and all Republicans who might actually hold the line, bring out the ultimate political shiv… ‘the Republicans are proving they are racists to the first black president.’
Combine that with the ‘Black Lives Matter’ and the Republicans start crumbling. Be prepared.
I like your idea of starving the media of news. The leftmedia are writing headlines: “The Battle Begins.” Nah, it hasn’t begun yet, and Republicans don’t need to play that game. There are a lot of preparations before anybody is ready for a battle.
But I question the wisdom of making this about the process. Sure, we shouldn’t make it about a person. But I think we should instead make it an issue of what the Supreme Court is for. If we make important points about how we need a Supreme Court to honor the constitution and protect people from the rapacious designs of leftwing oppression and consumer fraud such as the Affordable Care Act, you can be sure the news media will not report on that any more than they will report on Schumer’s turnaround. That would essentially be starving the media.
This is great advice. The senate needs three initiatives that are the go to priority whenever asked about the SCOTUS.
“Senator McConnell, what is your timetable on confirming the communist lesbian nominee?”
“Well, we have to focus on our priorities right now.. we are pushing to get the give fresh cash to deserving citizens bill right now, and then we have to work on the IRS abolition act….”
I don’t know. I rather liked the idea of every single Republican Senator reading Schumer (and Obama’s) words about Late Bush Era ™ SCOTUS nominees aloud. Frequently. Maybe even cutting TV ads and splicing in a cut from “Wrath of Khan”- “Sauce for the Goose, Mr. Saavik.” Sure it’s dated, but the right people will get it. I also like the idea of just saying the names “Bork” and “Estrada” and walking away anytime a media type brings it up. But the strategy proposed here could also be a winner. I’m just not certain. Silence seems too risky, like leaving the field to the Dems.
Republicans should stress that their “no confirmation” position is based on the certainty that anyone nominated by Obama will be a far-left ideologue, selected not for their judicial qualifications but for their propensity to put ideology ahead of the Constitution.
How can we know this when the nominee is still sight unseen? Because that’s who Obama is. Who he has always been. He is as incapable of compromise, of reaching out to the other side, of finding common ground, as he would be of growing a second head.
Maybe the Republicans should have waited until there was a nominee to announce their implacable opposition. It would have been easier to explain their position if there was an actual nominee to oppose. But since they didn’t wait, they need to explain why they know that the eventual nominee will be unacceptable.
It’s too bad McConnell didn’t have the wherewithal to seize the initiative from Obama and say something like:
“In a time where the country is experiencing strained race relations, the GOP would welcome the nomination of Judge Janice Rogers Brown to the SCOTUS. This would be a great step in advancing the country’s first African-American woman to the high court. Based upon her record as a judge, we see no issues that would prevent or even stall her confirmation in the Senate.”
Nevertheless, I agree – starve the beast.
Quite the contrary, they should have been quicker on their feet. They should’ve seized the moment, and declared that they look forward to Obama nominating a judicially-appropriate replacement for Scalia, someone cut from Scalia’s cloth.
Like Janice Rogers Brown. Or Ted Cruz. Or NR’s Andy McCarthy. Whoever. The point is, MAKE the point that the GOP will act on an appropriate nominee, and not on an inappropriate one. Put Obama on the defensive.