Even before Senate Majority Leader Mitch McConnell released his before-the-corpse-is-cold statement suggesting that the next president should pick Justice Antonin Scalia's successor, it was clear the Republican Senate is not going to confirm whomever President Obama picks. There's too much at stake. A new Democratic justice would shift the balance of power on the big bench. Facing the same dynamics, Senate Democrats would not have approved a nominee put forward by George W. Bush in his last year.
Indeed, without such stakes, Sen. Barack Obama not only voted against Bush's chief justice nominee, John Roberts, but also supported a filibuster -- that is, he tried to block an up-or-down Senate vote -- against now Justice Samuel Alito, who nonetheless was confirmed with bipartisan support. Taking on McConnell in the Washington Post, Minority Leader Harry Reid wrote that Democrats in the Senate "always guaranteed Supreme Court nominees a fair hearing and a floor vote." Well, not really. Reid also supported the Alito filibuster. Likewise then-New York Sens. Hillary Clinton and Chuck Schumer.
Supreme Court justices are supposed to be above partisan politics, but first every one of them has to survive a walk over the hot coals of naked partisan angling. The higher the stakes, the hotter the fire.
McConnell's unsolicited advice notwithstanding, Obama will nominate a replacement. He is, after all, president. But his nominee will face what Northern Illinois University political science professor P.S. Ruckman Jr. called "a textbook scenario for failure."
Ruckman crunched the numbers for Supreme Court nominations and the factors that tumble nominees. If the president is in the fourth year of a term, a nominee is 10 times more likely to fail. If the opposing party controls the Senate, a candidate is six times more likely to fail. If the vacancy is critical to the court's balance of power, a nominee is 12 times more likely to fail. An Obama nominee will face all three hurdles. Quoth Ruckman: "If Obama were to make a nomination and it were to be confirmed, it would be freakishly amazing, the most amazing nomination in history."
At a news conference Tuesday, Obama voiced his usual complaint about the "obstructionist" Senate. This is why Republicans should hesitate before engaging in feckless exercises like Sen. Ted Cruz's failed bid to "defund Obamacare." The more you go to that well, the less water there is when you need it. Obama didn't look disinterested when he tried to explain how his move to filibuster Justice Alito's confirmation was different from GOP opposition.
Ruckman is baffled at McConnell's failure to play the game. In polite society, you keep your mouth shut at least until Obama names the sorry sucker who will be thrown to the Senate wolves. Who knows? Maybe Obama will pick a consensus candidate. Or sprout wings. I think McConnell simply was cutting to the chase. He didn't say Obama cannot nominate anyone, spokesman Don Stewart noted. Everyone knows how this movie will end.