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Analysis: Senate GOP Can and Should Prevent Obama From Replacing Scalia

Guy Benson
Guy Benson  |  February 15, 2016 8:55 AM

The news of Supreme Court Justice Antonin Scalia's death cut like a dagger on Saturday, as admirers and adversaries alike were stunned by the sudden loss of a legal giant. Virtually everyone acknowledges his brilliance, his influence, and his impact on the Court. Virtually everyone sympathizes with his grieving family and loved ones. And virtually everyone began to consider the enormous consequences of his passing almost immediately: A High Court split 4-4. A vacancy that could alter SCOTUS' ideological composition for a generation. A divisive, lame duck president in his final year in office. A Republican-held Congress. A high-stakes, high-drama presidential election cycle well underway.  What could, and should, come next?  Senate Republicans appear to be foreclosing the possibility of confirming any nominee President Obama may put forward, hinting that they'll also do what is necessary to prevent the outgoing chief executive from making a temporary recess appointment -- which the White House says he won't do.  Republicans are right to fight to the mat on this, and they must not buckle.  Democrats and their media allies are already applying urgent, growing pressure on the GOP majority to consider and approve Obama's inevitable nominee -- who may very well be someone who's celebrated as "historic," based on the Left's identity politics rubric, in order to make sustained opposition as painful as possible.  Republicans ought to make the following arguments as they stand firm:

(1) Ample Precedent. As several GOP presidential candidates accurately noted at Saturday's debate, it has been more than eight decades since a Supreme Court vacancy arose and was filled in a presidential election year.  There is plenty of precedent for denying Obama the opportunity to make such a consequential appointment on his way out the door; indeed, the Senate has seen fit on several occasions to allow SCOTUS vacancies to sit open for more than a year.  Obama has the constitutional authority to name a nominee of his choosing.  The Senate has the constitutional authority not to act on it, especially in light of the standard practice when it comes to election year openings.

(2) Let the people vote.  The American electorate is in the process of choosing the next president. Votes have already been cast, and the current Supreme Court term is already underway.  The important next step of replacing Scalia can and must wait until the people have had their say.  The direction of the Court hangs in the balance.  

(3) The words and deeds of Senate Democrats. Let's begin with a few words from the minority party's current leadership team


Schumer was laying the groundwork to obstruct any SCOTUS appointment that may have been advanced over the last 18 months of George W. Bush's presidency. Harry Reid emphasized that there's a long history of election years being deemed "very tough" environments in which to confirm federal judges -- let alone Supreme Court justices, when the prevailing judicial philosophy of the Court is at stake.  Both Reid and Schumer are singing wildly different tunes today, for obvious reasons.  They absolutely would have followed through on their threats if this situation had arisen under the last Republican president.  How do we know this?  Because they are bare-knuckled partisan brawlers.  Under Reid's leadership, Senate Democrats significantly undermined decades of Senate precedent by weakening and limiting the use of the filibuster to block presidential appointments.  When the stakes were high, they changed the upper chamber's rules to suit their political purposes.  Republicans vowed to make them pay for their power-grab.  This is an ideal opportunity to do precisely that.  Senate Democrats also filibustered a highly-qualified Bush nominee named Miguel Estrada (so much for the "historic!" identity politics posturing) for two years because they were worried he might end up on the Supreme Court one day.  They famously ruthlessly and ferociously derailed Robert Bork's nomination by President Reagan in the 1980's. Over and over again, they fight dirty, and for keeps.  Turnabout is fair play.

(4) Elections have consequences.  This refrain has been popular among Democrats during the Obama years; the president himself set the tone for this line of argument with his infamous "I won" remark early in his first term.  It is true that Obama won back-to-back presidential elections.  It is also true, in my opinion, that presidents ought to be afforded a wide berth to put their people in place.  I even employed the "consequences" line in reluctantly opposing potential filibusters (that didn't materialize) against Justices Sotomayor and Kagan.  But the most recent national election was a referendum on Obama's agenda, and voters spoke unambiguously.  They swept in the largest Republican House majority since the 1920's, and elected nine new GOP Senators, decisively ripping control away from Democrats who'd obediently done Obama's bidding since 2009.  Voters rejected Obamaism in an historic wave.  If Senate Democrats wanted to maintain their majority, they could have governed differently.  They could have campaigned differently.  They could have won.  But they didn't.  Elections have consequences.

(5) Barack Obama's hyper-partisanship and executive overreach. Before we discuss President Obama, let's recall the standards embraced by Senator Obama.  He filibustered Justice Samuel Alito in early 2006, well before the midterm elections, demanding a 60-vote threshold for Bush's selection.  As Byron York says, that partisan maneuver will give Republicans some additional political cover as they set out to deny Obama another SCOTUS appointment.  More importantly, over his seven years as president, Obama has utterly and aggressively abandoned his 2008 posture as a unifying, post-partisan figure.  And he's relied on increasingly brazen, in-your-face abuses of executive power ever since Republicans won their first midterm landslide.  On issues ranging from war, to healthcare, to environmental regulation, to recess appointments, to Guantanamo Bay, to Iran, to immigration, Obama has regarded Congress (and public opinion) as an irksome impediment to the speedy implantation of his hard-left agenda.  His actions have sparked deep frustration, legislative efforts, and a flurry of lawsuits.  Now is a crucial, opportune moment for the GOP to exercise Congress' power to thwart him. He's done so much to earn it. He's paid little heed to the legislative branch's advice. They are well within their rights to withhold their consent.

I'll leave you with a few thoughts on the politics of this scenario:  If the Democrats win the fall election, it's quite likely that the incoming president will have a Democratic Senate majority to work with.  An extremely liberal replacement for Scalia will be nominated and confirmed, with several additional vacancies on the short-term horizon.  The importance of this election vis-a-vis the judiciary cannot be overstated.  Think of all the 5-4 decisions in recent memory that narrowly upheld fundamental rights such as free speech, religious liberty and the second amendment.  Republican voters must get serious in this campaign.  A loss to Hillary Clinton would do lasting damage to the republic.  Channeling anger and frustration with the "establishment" is understandable, but it isn't enough.  A win is necessary.   Also, some vulnerable Republicans may be antsy over playing hardball here. They should bear in mind that in order to be re-elected, they'll need conservative voters to back them.  Period.  Going wobbly in this battle would be a betrayal so deep that would send the base into full-blown revolt.  Some critics have already been asking, "what's the point of even having a majority?"  I'd submit there are multiple reasons to value the current majority, but if Senate Republicans cave on this fight -- laden with serious, long-term implications -- even more moderate conservatives (both ideologically and tactically) will find themselves seething over the same question.  In other words, amen:
And they needn't even "die" on this hill. They can plant their flag, cite the evidence and arguments above, and weather the shrill, hysterical storm that's brewing.  Unity, calmness, discipline, resolve.