AP Photo Fourth Estate Why We Should Thank Mitch McConnell By immediately turning Scalia’s replacement into a political catfight, he’s exposed the myth of the above-it-all Supreme Court.

Jack Shafer is Politico’s senior media writer.

Senate Majority Leader Mitch McConnell (R-Ky.) may have slightly oversignaled his party’s position on Saturday when he announced that the Senate wouldn’t confirm any Supreme Court nomination made by President Barack Obama to fill the seat newly vacated by Associate Justice Antonin Scalia.

“This vacancy should not be filled until we have a new president,” McConnell said, in reference to Obama’s alleged “lame duck” status. Sen. Chuck Grassley (R-Iowa), who heads the Senate Judiciary Committee, seconded McConnell’s stand, detonating a thousand opposing op-eds by liberal columnists, legal activists, scholars and politicians, who blasted the senator for sabotaging the advise-and-consent role assigned to the Senate by the Constitution.


But digging a micrometer or two deeper into the controversy, it becomes apparent that the vehement Republican opposition has less to do with Obama’s lame-duck status than the fact that the court’s balance—which favored the Republicans when Scalia was alive—might be upset if a liberal Democrat names his replacement. Had McConnell been diplomatic about the vacancy, he would have avoided controversy and spoon-fed the press and public the usual platitudes about his Republican majority having every intention to hold hearings and consider Obama’s pick with all deliberate speed. Instead, he took honesty’s route to rule out any Obama nomination.

By rejecting the Obama nomination before the Obama nomination has even been made, McConnell did almost a service to the republic: He put the lie to the notion that Supreme Court nominations are somehow above politics. The greatest beneficiary of the above-politics myth, of course, is the court itself, which fancies itself co-equal in power to the legislative and executive branches but whose basic business is to issue vatic pronouncements with none of the accountability that attaches to the offices we can actually vote for. McConnell’s posturing shows just how thoroughly infused Supreme Court nominations are with the scent of politics. Every move in the process, from White House nomination to Senate hearings to floor vote, reflects political ambition and political scheming.

How extreme was McConnell’s politicking? Scalia was barely dead and McConnell was already issuing explicit instructions to the president on how and when a prospective replacement for Scalia could be proposed. In doing so, McConnell wasn’t seriously suggesting that a President Hillary Clinton or President Bernie Sanders should be the nominator. He was offering his magical thinking that only a Republican president should make the next nomination.

In a 1999 American Journal of Political Science article, scholars Byron J. Maraski and Charles R. Shipan demonstrate how the “Nomination Game” works. Whenever a court vacancy opens, every president hopes to nominate someone who will bring the court closer to his own political line. That desire is tempered by several factors: If the president’s party commands a Senate majority, he has great latitude in getting what he wants; if not, he’ll be constrained to nominees who can appeal to enough members of the opposing party to win a majority. This formula isn’t set in stone, of course. But by and large, the formula holds. As Maraski and Shipan put it, “There is a reason most Supreme Court nominees easily pass the Senate: presidents act strategically to choose the best nominee they can, given the constraints that they face.”

In this case, there are two variables gumming up the current Supreme Court nomination process. First, obviously, Obama’s party does not control the Senate. But the larger wad of gum is the court’s ideological makeup. Before Scalia died, the Supreme Court often tilted toward a fairly consistent 5-4 conservative-Republican majority. Had the vacancy been created by the death or resignation of either Associate Justice Ruth Bader Ginsburg or Associate Justice Stephen Breyer, both appointed by Democrat Bill Clinton, McConnell’s vehemence would be tempered, because the basic balance of the court wouldn’t be at risk with a new Obama nomination. It’s understood that he’d be appointing a new Democrat to replace an old Democrat. (And likely he would only manage to confirm a less liberal version of Ginsburg, for instance.) It’s the potential seismic shift in power, replacing a conservative powerhouse like Scalia with the kind of judge Obama would pick, that has McConnell shouting “Stop!” at full volume.

“Law is the politics of the past frozen into ice blocks, which must be melted from time to time,” to cite an old Marcus Raskin quotation. The Supreme Court, which fancies itself above politics, melts during the nomination and confirmation processes, and “the struggles between different groups” become visible and “are then codified,” Raskin wrote. Every president longs to take advantage of every legal thaw caused by a court vacancy, hoping to get their man or woman on the court and restart the freeze. As Sen. Chuck Schumer’s (D-N.Y.) 2007 behavior shows us, if the roles were perfectly reversed, the Democrats would be making the same effort the Republicans are, and the Republicans would be decrying the Democrats as constitutional saboteurs.

To preserve the illusion that the nomination process is above politics, Grassley has already walked back his Saturday promise to automatically reject anybody Obama nominates. On Tuesday, he expressed a willingness to hold hearings depending on whom Obama nominates, which means he’ll at least look at the baby left on his doorstep before he kills it.

Correction: An earlier version of this article incorrectly asserted that Robert Bork was voted down by a Republican-majority Senate. The majority belonged to the Democrats.



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Supreme Court politics won’t really interest me until there are two vacancies. Send your nominees via emails to [email protected]. My email alerts clerked for Associate Justice Abe Fortas, my Twitter feed provided literary guidance for Associate Justice Antonin Scalia, and my RSS feed attempted to impeach Chief Justice Earl Warren.