President Obama’s decision to nominate a replacement for the late Supreme Court Associate Justice Antonin Scalia might define his legacy, will further polarize partisan electoral politics, and could swing the direction of the court and the Senate, Duke University academics say.
John Aldrich and David Rohde, professors of political science, and Neil Siegel, professor of law and political science, on Monday conducted a panel discussion examining the impact of Scalia’s death on law and politics.
“The Democratic base is activated by this as is the Republican base,” Rohde said. Senate Majority Leader Mitch McConnell, R-Ky., cognizant that grass-roots conservatives’ dislike of former House Speaker John Boehner led to the Ohio Republican’s retirement, quickly ruled out any hearings on an Obama nominee.
“[Texas Sen.] Ted Cruz says he will filibuster personally any nominee the president sends up,” Rohde said. “Donald Trump says delay, delay, delay, and [Florida Sen.] Marco Rubio says it doesn’t matter what nominee the president sends up — [the nomination] will not be moving forward.”
On the Democratic side, “this has implications for both the presidential nomination, and for the general election because this touches very strongly on the strongest demographic segment of the Democratic Party, that is African-Americans,” Rohde said.
With Obama unable to run for a third term, Democrats worried whether the African Americans would turn out to vote. “This appears to be an issue that might solve that potential problem,” Rohde said.
“So there are electoral consequences to this fight, there are consequences for what may happen in the Senate over the rest of the year because this may poison any attempt to compromise between the two parties,” he said.
Obama likely will decide between “somebody that he finds particularly congenial on policy, or that he thinks would make a candidate for whom he Republicans would have a hard time voting against if it ever reached a vote in the Senate,” Aldrich said.
“Obama’s decision will not only affect his presidency and legacy,” Aldrich said, but also who he nominates will determine how much pressure that places on Republicans to act in this session of Congress, and how it would affect presidential candidates.
Aldrich sees the Senate as up for grabs. Because the Republicans had so much success in 2010, “their incumbents are an unusually large fraction” of 2016 Senate candidates, and virtually all face strong challengers, Aldrich said.
“It is easier to imagine Republicans losing seats than it is Democrats losing seats,” he said.
Siegel believes the conventional wisdom about the high stakes of replacing Scalia, and the potential to flip the court’s 5-4 ideological split is “potentially significantly overstated.”
“Regardless of when this vacancy is filled, the next president and the next Senate are overwhelmingly likely to decide what the court’s going to look like” for the indefinite future, Siegel said.
The next president and Senate are likely to replace one or more justices. Justice Ruth Bader Ginsburg is 82 years old, Justice Anthony Kennedy is 79, and Justice Stephen Breyer is 77.
“So this idea that right now we’re deciding the fate of the Supreme Court for a generation is overwhelmingly likely to be untrue,” Siegel said.
A consequence of overestimating how much is at stake with Scalia’s replacement is hyperpartisan reaction that will “make it that much more difficult to govern in the future,” Siegel said.
“My hope is that we might be able to take some of the ideological temperature out of what’s going on here, and both sides can ask themselves what does a remotely sensible path forward look like,” he said.
“When you make nomination and confirmation expressly a political process, then the polarization and dysfunction of the political branches is eventually going to spill over to the courts,” Siegel said.
Siegel believes Obama’s eventual nominee will be “quite accomplished, and qualified, and fully able to do the job. It could be someone who has already recently been confirmed 97-0 like Sri Srinivasan” to the D.C. Circuit Court of Appeals, making it difficult for Republicans to argue a nominee lacks qualifications.
If Obama believes Republicans will not confirm any nominee, he might nominate someone like Attorney General Loretta Lynch, “who is quite accomplished, who would be the first African American woman on the court,” and whose rejection could energize the Democratic base in the presidential election, Siegel said.
Rohde believes Republican senators will remain in lockstep against an Obama nominee.
“If anybody defects on the vote, the conservative base is going to then crucify them,” Rohde said.
Aldrich envisions a scenario in which senators from “purple” states such as North Carolina’s junior Republican Sen. Thom Tillis could gain political cover if Republicans hold hearings on a nominee by saying they are fulfilling their constitutional obligations of advise and consent, “but don’t hold your breath that anything’s going to come of it.”
The panelists paid their respects to Scalia in opening remarks.
“Regardless of your politics there’s no question he was a man of great intelligence, and of real impact, and influence in the court, and he took his job very seriously, and he genuinely believed in his positions,” Aldrich said. That made him “such an effective intellectual leader of the conservative wing of the court,” and he will be missed.
“I knew him, I liked him, and I’m going to miss him,” Siegel said. “He was a good friend of Duke Law School. He came and spoke at the law school.”
But Siegel said he debated Scalia on originalism, the jurisprudential theory that questions of constitutional law should be decided based on the original meaning of the document’s language, and intent of the Constitution’s authors. “I explained all the reasons he was not an originalist.”
“I think he was ideological in his later years, and a political partisan at heart,” Siegel said. “I think he would be cheering for the Senate Republicans to do what they said they would be doing” to hold the line until the next election.