Adult Conversation on SCOTUS Controversy

Rich Hasen on Election Law Blog (h/t Talking Points Memo).

So if we cut through all the hogwash about precedents, and what the President’s obligations are, about letting “the people” decide, about the difference between “interpreting” and “making” law, the dispute comes down to a political power struggle.

On the most important issues of the day—from gun rights to abortion rights, from climate change to voting rights, from consumer protection to campaign finance—-who sits on the Court matters. This is why before Justice Scalia’s death I called control of the Supreme Court the most important civil rights issue of the 2016 elections. Justices chosen by Republican presidents are very, very likely to have one set of views on these issues while Justices chosen by Democratic presidents are going to have the opposite set of views. This is not because these Justices are consciously acting to help their parties. It is because nominees are chosen for their jurisprudential commitments and worldviews which line up with what the parties care the most about.

Whether President Obama’s nominee ultimately gets a hearing and a vote depends upon a raw struggle for political power in a zero-sum game. And it is one likely to repeat itself a few times during the next presidency, as up to three more vacancies open up.

My own view is that there should be a hearing because I want a progressive majority on the Supreme Court. It is the only path I see to campaign finance reform and other issues I care about.
For the current vacancy, I expect the best predictor of how far the nominee will get depends upon polling among endangered Republican Senators up for reelection. If Mark Kirk or Kelly Ayotte appear to be in trouble, and Senate obstinacy on this issue appears to be part of the reason, Senate Majority Leader could well relent. Because the one thing that is probably worse to McConnell than a liberal Supreme Court is losing his Senate majority in 2016.

OK, now we can all go back to the fake rhetoric, debate about what happened in the Senate in 1880 and watch both sides accuse the other of hypocrisy.