Justice Antonin Scalia died Saturday, and Senate Majority Leader Mitch McConnell (R-Ky.) signaled immediately that the Senate will not consider any nominee President Obama might tap to replace him. Republicans seem to have a strong argument: Americans are about to elect another president; their choice should guide who gets to serve out a lifetime appointment on the nation’s most powerful unelected body.
On the other hand, McConnell’s declaration reflects three awful aspects of the country’s politics: politicians’ tendency to push off big decisions in case they win the next election; intense political acrimony surrounding executive nominations; and the increasing role of the judiciary as the two other branches of government mire themselves in gridlock, which makes the stakes on judicial appointments only higher.
Americans will not vote for a new president for nine months, and they will not have a new president inaugurated for 11 months. The GOP argument is that the president enters a no-confirmation zone nearly a year before the end of his or her term. From here, both sides will eventually have cause to argue that the Senate should ignore presidential nominees in the run-up to all federal elections, which occur every two years, rather than just before presidential votes. That could zone out half of every president’s time in office, rather than just a quarter of it.
That is not the only way the coming Supreme Court brawl could escalate. Suppose: Republicans block Obama’s coming nominee pending the election results. If the next president is a Republican, Senate Democrats argue that the GOP illegitimately denied their president a Supreme Court confirmation, so Republicans deserve to have their president’s pick blocked, too. As Linda Hirshman pointed out in December, Democrats will no doubt find the prospect of an eight-member Supreme Court to be appealing — it would give lower courts, now filled with Obama appointees, more influence. And so forth.
Things could work out differently, of course. But the point is that McConnell’s decision creates more precedent and pretext politicians can use to slow the mechanics of government for temporary partisan advantage. They will be very tempted to do so.