Thursday, February 18, 2016

GOP should be careful what they wish for with regard to Supreme Court Nominee

(This column was published in the Dayton Daily News on February 26th, 2016...)

 Within hours of the death of Supreme Court Justice Antonin Scalia last Saturday,
Republican leadership and the remaining Republican candidates for President voiced
the opinion that President Barack Obama should not pick the successor to Scalia.

Majority Leader McConnell quickly released a statement that said, “the American
people should have a voice in the selection of their next Supreme Court Justice.
Therefore this vacancy should not be filled until we have a new president.” Senate
Judiciary Chair Chuck Grassley offered, “It’s been standard practice over the last
eighty years to not confirm Supreme Court nominees during presidential election
years.” GOP front­runner Donald Trump advised a “delay-­delay-­delay” approach
while fellow candidate Ted Cruz said “we owe it to Scalia and the Nation to ensure
that the next President names his replacement.” Marco Rubio said, “The next
President must nominate a justice who will continue Justice Scalia’s unwavering
belief in the founding principles.”

Replacing a staunch conservative with a progressive on the Court flips the balance
of power from leaning conservative to leaning liberal. On issues from Citizens
United, to labor rights, to abortion, gun control, voter’s rights, etc., there’s no
shortage of impactful cases headed the Court’s way. Considering the age of the
three oldest Justices, multiple vacancies during the next Presidential term would
surprise no one. Justice Ruth Bader Ginsberg is 82, Anthony Kennedy is 79 and
Stephen Breyer is 77.
Instead of waiting for a nomination from President Obama, the Republicans
couldn't wait to get on record on how they would refuse to allow this sitting
president to select Justice Scalia's replacement. By merely dragging their feet a bit
and ultimately rejecting the nomination, which is well within their rights and
would’ve been a vastly smarter thing to do, this problem would’ve handled much
more deftly. Having chosen a different path to address this, they look like
hypocritical, spoiled brats at the moment.
Senate Republicans should choose their next steps very carefully. Looking forward,
if the Democrats hold the White House and either President Clinton or President
Sanders is putting forth the nomination, do we think they will be inclined to submit
a less progressive name then President Obama did? I don’t.

If President Trump or Cruz is doing the nominating then the GOP fears become
moot. However, there is nothing currently suggesting either would win in a
comfortable fashion come November. That’s a big risk for the GOP should they
refuse Obama his nominee. What if they lose?
If the GOP’s goal is to block Obama, they can do that. If their goal is to effect the
ideological makeup of the Court as little as possible, they should reconsider their
approach. Obama, a major disappointment to progressives, is unlikely to nominate
a radical. His previous two nominees (Sotomayor and Kagan) are not considered
extreme. If they block him and then lose in November, the new President will
submit their own nominee. By their actions, the GOP may facilitate adding a far
more progressive voice to the Court than Mr. Obama would.

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