The War After Scalia

By Ross Douthat

Tuesday, February 16, 2016

In the wake of Antonin Scalia’s death, two lines of critique are circulating concerning Senate Republicans’ immediate declaration that they won’t approve any replacement before the next president is elected and inaugurated. The first, offered by David Frum, Chris Cillizza and others, holds that Mitch McConnell and Co. would have been better served politically by pretending to consider an Obama nominee and then simply using a sixty-vote threshold to avoid approval, rather than coming across as baldly intransigent from day one. The second one, offered by Slate’s Mark Joseph Stern (who wrote one of the more generous liberal eulogies for Scalia), goes further and argues that Senate Republicans are gambling significantly by declining to approve a moderate-liberal nominee, since if they lose the Senate and the White House this fall they could end up with a more radical, precedent-overturning liberal on the court instead of a compromise choice. Here’s Stern:

    Whatever the merits of the constitutional argument, the Republicans’ political strategy here is extremely risky. It makes some sense at first blush—better to roll the dice that a President Rubio or Bush will get to appoint Scalia’s successor—but completely falls apart upon further analysis. There are serious compromise candidates on the current shortlist, extraordinarily qualified moderates like Sri Srinivasan who would likely refuse to overturn treasured conservative precedents like Heller (establishing an individual right to bear arms) and Citizens United (allowing unlimited corporate electioneering). If the Senate confirmed a Srinivasan type now, it might have to swallow a slight liberal SCOTUS tilt—but it could, by and large, avoid dramatically altering the balance of the court.

    If the Senate holds out until January 2017, however, it will be taking an astonishing gamble. Should voters send another Democrat to the White House in November, they just may turn the Senate blue again at the same time. At that point, the president could nominate a true liberal, in the vein of Justice Sonia Sotomayor—and Senate Democrats could revise the nuclear option and push him or her through over staunch GOP opposition. Once a Justice Goodwin Liu takes the bench, no conservative precedent would be safe. Goodbye Heller, goodbye Citizens United, goodbye McCutcheon and Hobby Lobby and maybe even the death penalty itself.

This is plausible-enough in a historical vacuum, but it collapses if you understand how conservatives regard their experience with Supreme Court nominees. Since 1968, the year that the modern right-of-center political majority was born, Republican presidents have made twelve appointments to the Supreme Court; Democratic presidents have made just four. Yet those twelve Republican appointments, while they did push the court rightward, never delivered the kind of solid 6-3 or 7-2 conservative majority that one might have expected to emerge. Instead, John Paul Stevens, David Souter and Harry Blackmun all went on to become outspoken liberals, Blackmun and Anthony Kennedy went on to author decisions sweeping away the nation’s abortion laws and redefining marriage, Sandra Day O’Connor and Kennedy both ratified Roe v. Wade — and so on down a longer list of disappointments and betrayals.

Meanwhile, none of the four recent Democratic appointees, whether “moderate” or liberal, have moved meaningfully rightward during their tenures. On the crucial cases of the last decade (including the cases Stern lists) they’ve reliably voted as a bloc. The most genuinely unpredictable of the four, Stephen Breyer, is basically crusading to eliminate the death penalty already. The more moderate of President Obama’s two appointments, Elena Kagan, has voted with the more liberal Sonia Sotamayor more reliably (especially in 5-4 decisions) than, say, Scalia voted with John Roberts. And the court’s only actual swing vote remains, of course, a Republican appointee.

So telling Republicans that they should accept a moderate liberal lest they risk a real liberal is likely to inspire a bitter chuckle, since from the perspective of conservatives they risk at least a moderate liberal in practically every appointment anyway. (Including the last Republican president’s, since most fairly or not many conservatives feel they dodged a bullet with Harriet Miers.) And if you’re starting from that kind of disadvantage, you simply can’t afford to throw away even a chance at appointing a real conservative in the name of a play-it-safe compromise: If there’s one thing conservatives have learned from forty years of judicial appointment battles, it’s that when you compromise, you lose.

Further, you lose the most on the issues that animate the party’s socially-conservative voting base — as opposed to donors, think-tankers and the Chamber of Commerce —because it’s social issues where time and again the elite consensus has tugged Republican appointees leftward.

So it’s not just that conservatives have good reasons to be more skeptical than Stern that even a “moderate” Obama appointee would ultimately hesitate to overturn (or at least carefully undercut) some of the precedents he cites; it’s that on certain issues they have extremely well-grounded anxieties. Tell the average conservative voter that they should accept an Obama appointee in the hopes of preserving Citizens United and McCutcheon, and they’re likely to stare blankly and then shrug when you explain the campaign-finance law implications. But tell them that, despite having a fighting chance to replace him with a conservative, they should trade their great champion and bulwark on abortion, marriage and religious liberty — to borrow from one eulogy, “the mighty rearguard in our long and slow defeat” — for an Obama appointee at a moment when social liberalism is ascendant and the legal and cultural consequences of same-sex marriage are beginning to ripple across the country and the courts … well, they’ll look at you like you’re insane.

And they would be right to do so. There is some gambling involved in resisting an Obama pick, certainly; there’s some chance of a worse outcome overall. But given the plausible hope of replacing the court’s most important conservative with another conservative, accepting a supposedly-moderate liberal without an electoral fight would be remembered forever as the G.O.P.’s greatest betrayal of social conservatives, its final surrender in the culture wars.

And this is, I suspect, why Mitch McConnell took the hard-line stance he did. The optics are bad, yes, but if you act publicly as though confirmation is entirely possible and plausible, then you increase the pressure on purple-state Republicans to go a little further and actually say that their votes are up for grabs. And this, in turn, would raise the spectre of a Great Betrayal — however implausible it might be — for suspicious conservatives, and create the preconditions for a basically pointless base-versus-leadership war in the middle of a presidential year. Whereas a harder line gives clear direction to the Rob Portmans and Ron Johnsons that this is what we’re doing, get on board, and the lumps you take are ones you would probably take anyway when you failed to confirm Obama’s pick, and there’s no risk of a full-scale conservative panic attack over the possibility that their leadership and senators might sell them out.

The counter-argument is that a Portman might survive in Ohio if he votes for (let’s say) an African-American nominee who goes down (let’s say) 52-48. But that kind of targeted politics hasn’t worked particularly well in our nationalized political environment lately, and it seems even less likely to work in a presidential year. (If Republican intransigence boosts black turnout for Hillary in Cleveland or Cincinnati, those extra voters probably aren’t going to think, “oh, but Portman was on our side, let’s keep him in office.”) And it’s always possible, in a country where many millions of people don’t even recognize Antonin Scalia’s name, that Senate intransigence will energize conservatives more than it excites liberals or alienates swing voters.

Which is not to say that conservatives are in an enviable position. This is a bad, backs-to-the-wall situation no matter what happens. But the good options for the right died with Scalia last Thursday night. What remains is what remains: The choice between pre-emptive surrender and a perhaps-foredoomed but still necessary last stand.