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“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?
This will be 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.)