The passing of Antonin Scalia is tragic and dramatic. As a man who was respected by people of many ideologies and parties for his strong legal mind, his involved approach to being a Supreme Court justice and his firm substantiation of his beliefs, he will be missed by many and has an important place in United States Supreme Court history.
His passing also creates an intriguing political opportunity. Hours after his death, Senate Majority Leader Mitch McConnell announced that the Senate would not vote on any appointment for Scalia’s successor made by President Obama and insisted that Scalia’s replacement should be appointed by whoever is elected into office after Obama.
The sentiment behind this approach is justifiable. The Supreme Court has become more and more involved in the most important issues facing our country. Campaign finance, same-sex marriage and gun control are all social issues that have been definitively settled by a Supreme Court decision in recent years. They are also issues that divide many Americans along party lines. The current members of the court are already evenly split, meaning that the new justice appointed will likely be the deciding vote in significant decisions about the future of our country. It is reasonable for Senate leaders to request that the voice of the people be heard and that this election should be the one that also decides the direction of the Supreme Court.
But the Republicans have given Obama an opportunity to influence that election. Obama is a smart political tactician who will play the situation to his advantage and he will utilize this opportunity to fracture the Republicans ahead of the 2016 election. In 1987, Ronald Reagan nominated Judge Robert Bork for the Supreme Court. Bork was a deeply conservative judge, and upon his nomination, Democrats quickly began to demonize him. Democratic Massachusetts Senator Ted Kennedy gave an inflammatory speech where he indicated that Bork would usher in an era of unprecedented conservatism. Eventually, the Senate blocked Bork’s nomination, and Reagan nominated Anthony Kennedy instead, a much more moderate choice who was confirmed unanimously.
That situation is similar to our modern one, but there is a major difference. Obama is not quite as popular now as Reagan was in 1987. Reagan could count on his popularity as President to help ensure a Republican presidential victory in the coming election, while Obama cannot do so with nearly the same degree of certainty. The Democratic field of candidates is looking exceptionally weak, and a Democratic victory is far from certain.
Obama is smart enough to realize this, and will use the Supreme Court nomination to help his party gain a victory in 2016. He will nominate a moderate judge, in the same vein as Anthony Kennedy —someone that the Senate Republicans would not be able to attack effectively, someone who leans slightly left of center. This will have two positive effects for the Democrats. First, the Republicans will have difficulty opposing a moderate, consensus choice candidate without contributing to the argument that they are adding to the current political gridlock in Washington. And second, it will highlight the differences between the moderate half of the party and the much more conservative grassroots half.
Ultra conservatives like Senator and Republican presidential candidate Ted Cruz will excoriate Senators and candidates who support a moderate nomination from Obama, while moderates will realize that they cannot oppose a reasonable pick without suffering political consequences. It will expose a familiar rift in the Republican Party, a chasm that has seemed ready to break wide open throughout this campaign cycle. Ultimately, it will have the effect of further alienating grassroots conservatives, who are already extremely angry with the party’s moderate side, and increase the likelihood of an unelectable candidate gaining the Republican nomination. The nomination of a moderate justice will contribute to the overall likelihood of a Democratic victory, which Obama realizes is vital to protecting his legacy, and is the course of action he is sure to take.
Duncan Cock Foster is a College junior from Seattle, Washington.
