The unexpected death of Supreme Court Justice Antonin Scalia had hardly sunk into our consciousness Saturday before Republican leaders and presidential candidates were proclaiming that President Obama should not be allowed to nominate a replacement for Scalia. The GOP-majority Senate, they said, must not approve anyone the president nominates.
But before Ted Cruz, Marco Rubio and the others go too far down that road, they might want to consider what refusing to allow the constitutional nomination and consent process to take place might mean. There's an election in November, and none of the Band of Belligerents running for the GOP nomination have any assurance of prevailing against the Democratic nominee. Should the Senate refuse to allow a Supreme Court nomination by President Obama, in January they might find themselves confronted with a nominee from President H.R. Clinton or President Bernie Sanders.
Would a Clinton or Sanders nomination be more comfortable for the Republicans than an Obama nominee? Probably not. Although Obama has been the target of some of the angriest and most scurrilous attacks in recent American politics, he has usually sought to lean toward the center in his judicial appointments, selecting respected lower-court judges and law professors. Another Obama nominee would likely be less distressing to the GOP than the post-election alternative should the Democratic nominee win.
It has been rumored that President H.R. Clinton might appoint Barak Obama, a former law professor, to the Supreme Court. Or, alternatively, she might appoint another former president, a former Arkansas attorney general, to the high court. How would Cruz and Rubio like them apples?
This assumes that the Democrats will win the White House in November. There is close to a 50% chance that the Democratic nominee will win. If the Republican nominee prevails, the gamble on the court will have paid off, but at the expense of making it clear to already disillusioned voters that the Republicans care more about party politics than they care about continuity on the Supreme Court. Whoever a Republican president might nominate to replace Scalia will not be another Scalia, who was an extraordinary legal thinker who bent the trajectory of the Supreme Court over his three decades there. I dare say there is not another like him waiting in the wings.