With the passing of Supreme Court justice, Antonin Scalia, the politicians are lining up in anticipation of a fight over his replacement. The media arsonists are busy spraying gasoline on the fire not caring so much who gets burned as that there is indeed fire. In fact, from their perspective, the more fires the better. As of a week after Scalia’s death social media is ablaze with memes alternatively blaming Obama for nominating a liberal which he has yet to do and Republicans for obstructionism in failing to confirm a candidate yet to be named.
That will no doubt happen, but the current situation is like boxers kicking each other in the scrotum during the pre-fight hand shake.
Republicans label Obama the most divisive president in history and he blames them for being obstructionists. Both are of course, correct. Hard to say which came first: Obama’s “do what I say or I’ll cram it down your throat” approach or the Republican’s “first block everything” stance. Neither has made even the slightest attempt toward compromise or statesmanship.
The selection of the next Supreme Court justice is an opportunity for both sides to act like adults for a change and to do so without losing face.
Fat chance, right? Why should either side change at this late date. In fact, the republicans have doubled down. The first thing out of their mouths is that they will have no part in vetting, much less confirming any Obama nomination. None, nada, zilch! Apparently, they have been playing without their helmets and need to go through concussion protocol.
Hard to believe they can be that moronic, but stupid is as stupid does. They have cleverly tricked Obama into a no lose situation. In fact, it would be a brilliant strategy for Obama to nominate a Republican!
Keeping in mind that I said they have an opportunity to act maturely, not that they would. But this anticipated fight is over what is pretty much a myth.
That myth is that
the Supreme Court is conservative
and Scalia’s replacement will change the course of the country.
Democrats feel it is only fair to get a liberal so that the court will swing left. Republicans feel it is important to replace one conservative with another so they don’t lose their scant edge. Bad news, elephant boys. It is too late. The libs have already feasted on your carcass and are cleaning their teeth with ivory picks made from your tusks.
It is generally held that SCOTUS is conservative because there are five conservative justices and four liberals. However, in The New York Times article from June 26, 2014 (http://www.nytimes.com/2014/06/27/upshot/a-more-nuanced-breakdown-of-the-supreme-court.html?login=email&_r=0),Hannah Fairfield and Adam Liptak show “A More Nuanced Breakdown of the Supreme Court”. Here is a graphic from their article indicating that there are significant clusters and gaps when the justices are ranked from most to least liberal based on their legal decisions.
While this is good information, the graphic actually distorts the truth. First, take a look at the scale. Since Kennedy votes half liberal and half conservative, he is the definition of a centrist. As such, he should be positioned in the middle, not at what appears to be about 60% conservative.
With that adjustment, the court appears to be balanced at four to four:
The scale starts at with Kagan, Sotomayor and Ginsburg around 70% to the left. The most conservative justices, Thomas and Alito are only about 60% to the right. In fact, they are more comparable to Breyer who is the most moderate of the liberals.
On the other hand, Roberts and Scalia at 44.6% liberal are only scant 5.4% right of center. Kagan, Sotomayor and Ginsburg tip the scale significantly to the left.
If you are on the left, I suppose that is cool. Although, it is unlikely that the “Fathers” were going for “cool”. Their vision was that SCOTUS would act much like referees in sports. They were supposed to evaluate whether events and actions were inside or outside of the rules. They were not endowed with the authority to change the rules based on their own ideology or the color of their jersey. But, that is another post.
The premise of this one is that selecting Scalia’s replacement is “an opportunity for both sides to act like adults without losing face.”
Let’s assume for a minute that Obama is willing to come down off his throne and congress is willing to climb out of its playpen. What should they do?
Well, Obama could still come up a winner by doing – NOTHING.
Since the Republicans have stupidly proclaimed that they will not entertain any selection he makes, he could go play golf. Who needs that kind of aggravation?
Let’s assume that all justices made the same number of decisions and one SCOTUS decision pretty much weighs the same as any other. (I know that isn’t true, but bear with me. As you will see, it hardly matters.) The pre-Scalia-death makeup looks like this:
Since Kenney at 50% doesn’t throw weight in either direction, he is omitted. Each justice’s voting percentage is subtracted from the centrist position of 50%. This gives the amount of bias. Thus, the current situation is that SCOTUS is 9.4% liberal.
Without Scalia, it looks like this:
By doing NOTHING, Obama shifts the SCOTUS balance from 9.4% liberal to 10.7% liberal. He can then impact both the presidential and congressional elections by claiming the “obstructionist” Republicans kept him from doing his duty and still increase the liberal bias.
If he could nominate a Kenney-like moderate conservative replacement. The result is the same as doing nothing:
However, in this case he can shake his image as a petty political tyrant by making what appears to be a conciliatory gesture. If the Republicans don’t confirm the nomination they continue to look like morons and turn moderates further against them in the upcoming elections. If they do confirm the nomination, they can save a little face but Obama wins because the court still becomes more liberal.
The highly-unlikely best-case scenario for Republicans is still hopeless. Let’s say they stall any Obama nomination, win the Presidency and don’t lose control in congress. (Yeah, right.) Assume they get a justice as extreme right as Kagan is extreme left. It looks like this:
While odds of that scenario rank with winning the lottery, it still would leave SCOTUS 5.6% liberal.
The only way Obama can lose is if he nominates a liberal. That would give the Republicans the excuse to say no and make Obama look like the intractable politician he has been to date. While the court still moves leftward, that could actually help the Republicans in the elections.
If Obama nominates a competent centrist on his way out, it would go a long way toward mitigating his legacy as a ham-handed politician. Unfortunately the Republican Party has no such option. While it can save face, they cannot prevent the court from moving left, will most likely lose the presidential election and could lose congress. The Republican Party should lean over, put its head between its legs and kiss its butt goodbye.
Ironic that the elephant party can never forget that the donkey party kicked its ass.
It is always darkest just before it goes pitch black.