Scalia’s seat is critical to the future of the closely divided court. Even a moderately liberal Obama appointee would tilt the court significantly to the left. The president’s script facing Republican opposition on this issue is already written: send up a liberal nominee, claim his choice is “in the mainstream” as he did with his previous strongly left wing choices, and assert that the other side is engaging in naked partisanship.
But that playbook won’t work this time because Mr. Obama has no leverage. The Senate leadership is not obligated to take action on his nominees, Constitutionally or otherwise. The GOP has strong incentives not to give the president an opportunity to fundamentally reshape the direction of the court. And the White House cannot win the public opinion war because the key constituency in this case is the Republican base. It is an election year for a third of the Senators too, and the GOP has to defend 24 seats to the Democrats’ 10. If Republican leaders caved on this issue, they would probably be throwing away their control of the Senate, and maybe their shot at gaining the White House.
Democratic Senate leader Harry Reid claimed that waiting until after the election to confirm a new justice would be “unprecedented,” but that is not true. When Associate Justice John McKinley died in the election year of 1852, Whig President Millard Fillmore tried three times to fill the seat, and all three attempts were killed in the Democratic Senate by procedural actions. The spot remained vacant until the next president, Franklin Pierce, successfully nominated John Archibald Campbell.
When Associate Justice Peter V. Daniel died in May 1860, Democratic President Buchanan waited until February of 1861 to nominate Attorney General Jeremiah S. Black, after the contentious 1860 election had been decided. Black was defeated by one vote. Given the chaos attending the outbreak of the Civil War soon after, President Abraham Lincoln did not fill the seat until July 1862 when well-respected jurist Samuel Freeman Miller was confirmed a half hour after his name went up to the Senate.
Deferring the nomination process will have beneficial political effects. It will clarify the importance of the presidential vote. And the outcome is in doubt. Maybe Republicans will be in charge of the White House and the Senate, and appoint a worthy conservative successor to Scalia. Or the institutions could be divided, in which case negotiations would commence. Or maybe Democrats will control the Presidency and Senate next year, and will not have to compromise on the appointment. They could even elevate Mr. Obama to the court, an idea Hillary Clinton said she “loves.” Hopefully Mrs. Clinton will start talking up that idea as she panders to African American voters. She would single handedly guarantee the highest Republican voter turnout in history.