When I wrote the blog post last July on the affect the Presidential election would have on the path forward of the Supreme Court (The Supreme Court after the Upcoming Elections – An Analysis), I had no idea that the issue would become prevalent before the general election. I believed at the time that we would be dealing with retirements and/or deaths of the Supreme Court Justices during the next President’s first term, or more certainly during his/her second term if reelected.
However the sudden death of Justice Antonin Scalia has added a new perspective to this election cycle. Of course, one would normally assume that President Obama’s nominee to replace Scalia would take office before the November elections. However, I find it almost impossible to believe that the Republican controlled Senate will confirm President Obama’s nominee if that person even if that person is not a true progressive. Already I am hearing the new Republican refrain: “It is traditional not to confirm a Supreme Court Justice during a Presidential Election. That choice should be deferred to will of the people”. Several Republican Senators were singing variations of this tune including Mitch McConnell. They obviously will do their level best to delay confirmation of any nominee until after the next President takes office. I think that it is entirely likely that the first task of the next President of the United States will be to choose Justice Scalia’s replacement.
Even if President Obama is successful in having his nominee confirmed, that is unlikely to be the end of the Supreme Court drama. Scalia, who was almost 80 when he died, was only the second oldest Justice on the Court. Ruth Bader Ginsburg will be 83 when the next President takes office and will be 91 if she remains on the court for the next eight years. Anthony Kennedy will be 80 in July of this year and Stephen Breyer will be 78 by the time the next President takes the oath of office. Ginsburg and Kennedy have had health issues in the past; in Ginsburg case they were very serious health issues. It is entirely possible that one or more of the remaining Justices will no longer be on the bench four years from now. That is even more likely to be the case in the next eight years if the President we elect in November wins a second term.
The untimely death of Anton Scalia will call attention to the role the Presidential election will have on setting the direction of the Supreme Court for the next 20 years. Surely it will reemphasize the need by both the Republican and Democratic Parties to nominate “electable” candidates. Those candidates also need to have “long coattails” because the fight for control of the Senate in the November will also take center stage in the battle to control the nation’s highest court.
Until now the fringes of both parties have been dominating the nomination cycles with their anger and disenchantment. Leading the Republican parade are perhaps two of their least electable candidates, Ted Cruz and Donald Trump. The moderate independent voters who decide national elections are not fans of the far right or the far left and Cruz been a leader of the Republican’s conservative extreme right. Most American people are unlikely to forget or forgive the Cruz led shut downs of the government which inconvenienced many and cost hundreds of millions of dollars. Cruz is despised by most Republican leaders including the vast majority of his Senate colleagues. For instance, Bob Dole said he might sleep in on Election Day if Cruz is the GOP nominee.
Trump is a reality TV star turned carnival barker whose act is wearing thin for most Americans, including many Republicans. While his extremely loyal supporters continue to give him big leads in most of the polls, he has low favorability ratings overall and he seems to have a ceiling of about 35% of the Republican electorate. That translates to just a small percentage of all American voters. However, between them Trump and Cruz control over half of the potential Republican primary and caucus voters even with the current GOP field pared down to just six candidates. Without some external stimulus, it is hard to see why one of these two will not be the ultimate Republican nominee.
On the Democratic the liberals on the far left have been mesmerized by the promises of a political revolution under the leadership former Independent and self proclaimed “Democratic Socialist”, Bernie Sanders. Idealists on the left and far left are attracted by his promises to implement every progressive program known to man and young people in particular love his offers of government freebees. While pragmatists in the Democratic Party understand that these are empty promises that can not be kept, the Sanders supporters have the corner on the enthusiasm of “true believers”.
However, political realists in both parties know that Sanders chances of winning the general election are low and that Hillary Clinton would be much more difficult to defeat. That’s why the super PAC run by Karl Roe spent $1.5 million before the Democratic primary in New Hampshire attacking Clinton using Bernie’s talking point, accusing her of being a pawn of Wall Street. Republicans obviously want to face Sanders not Clinton in the general election.
Why? Sanders currently appears to be relatively strong in one on one match up polls against hypothetical Republican opponents. The answer is easy. Republicans know that their dirty trick operatives are eager to sink Sanders’ candidacy with the ammunition he has already provided to them.
The GOP is eager to run ads indicating that Sanders based his early political philosophies on the writing of Marx, Lenin and Trotsky and that he honeymooned in the Soviet Union at the height of the cold war. They are also eager to point out he made a trip to Cuba in the 1980’s and praised Fidel Castro. They also relish the opportunity also show that soon thereafter Sanders traveled to Nicaragua to meet with Daniel Ortega, where he lavished praise on the Sandinista government. They want voters to know that Bernie had a Soviet flag on display in his mayor’s office in Burlington and that today a portrait of his hero, Eugene V. Debs, a socialist leader who early on supported the Soviet revolution in Russia, proudly hangs on the wall of Bernie’s Senate office in Washington.
Now all of these stories, while true, are not near as incriminating as they seem on the surface. Once you understand the background explanations, absolutely none of them are indications that Sanders is really a communist or communist sympathizer. He really is a Democratic Socialist as he claims, though some polls show that alone is problematic in the eyes of many voters. Never the less, the Republican dirty tricks artists swift boated John Kerry’s chances of winning the Presidency with far less ammunition.
So currently both the Republican and the Democratic candidates with the most momentum have serious electability problems. At the same time the untimely death of Justice Scalia servers as a reminder to both parties that this is a Presidential election they can not afford to lose. No less than the political balance of power in the Supreme Court, between conservatives who have held sway for forty years and court’s progressive wing, is at stake.
Even with Scalia’s loss the balance of power has shifted in favor to the progressives until his replacement is confirmed. Instead of four deeply conservative Justices countered by four reliable liberals with Anthony Kennedy as the swing vote, the court now has three reliable conservatives and four reliable liberals until a new Justice is confirmed.
If the next President appoints the Scalia’s replacement, the victor in November will be able to either restore the court to his former somewhat balanced state or put the liberals firmly in control. However, considering the age of three oldest Justices still on the highest bench, it entirely possible for the next President to be able to radically alter the balance of power of the Supreme Court for the next twenty years.
Knowledgeable members of both parties already understood how the Presidential election will determine whether the Supreme Court will decide future critical issues in a more conservative or a more liberal manner. Justice Scalia death serves as an attention getting reminder to the rank and file of both parties of the importance of upcoming election and will place a great deal of emphasis of on the electability of the their parties’ nominees.
With the fate of the Supreme Court in the balance I fully expect the leaders of both parties to get more involved in the primary and caucus processes in an attempt to steer their members towards nominating “electable” candidates. They simply cannot afford to hold back now in an attempt to continue to appear neutral. I expect Democratic leaders to push hard for the nomination of Clinton. I also full expect the Republicans to fairly quickly put their weight behind one the remaining “establishment” candidates, Rubio, Bush and Kasich while pressuring the other two to drop out to prevent dilution of the establishment vote.
However, this all of this has to be done with some subtlety; the leaders of both parties cannot afford to alienate their most enthusiastic voters who are currently supporting “fringe’ candidates. On the Democratic side there is hope that the situation will resolve itself without heavy intervention. The next large group of primaries starting with South Carolina and continuing through the February 1st “SEC primaries” will be mostly held in states with very diverse electorates which should be very difficult for Bernie Sanders to navigate. Clinton also has large leads in most of the other states, including those with the most delegates like Texas California and New York. She also has the commitments of the majority of her party’s super delegates and she has best field organizations in almost every state. Sanders’ one advantage is the enthusiasm of his supporters.
On the Republican side the possibility of nominating an “electable” candidate is more problematic. In many recent state polls Trump and Cruz control the majority of the votes between them with Trump having by far the biggest advantage. Carson will drop out soon, but expect his support to be transferred to Trump or Cruz. It may take a while for the candidates in the establishment lane to be reduced to one. Meanwhile they will continue to split the delegates left over after the “fringe” candidates have taken the majority. It remains to see how the votes in Republican primaries and caucuses will be split after field is reduced to three candidates – Trump, Cruz, and perhaps Rubio. It is very possible the Republicans could be headed into a “brokered convention” where no candidate has a majority of the delegates needed for the nomination.
Regardless which the outcomes of both nominating processes, it seems likely that the balance of power in the Supreme Court for the foreseeable future will favor the party with the most electable candidate in the November election.