Things can change fast in American politics.
When the sun rose this morning, most any conservation about Supreme Court vacancies would have centered around President Obama replacing Justice Ruth Bader Ginsburg – the eldest of the court’s nine justices and a two-time cancer survivor who will turn 83 next month.
And then on Saturday afternoon came the news that Justice Antonin Scalia had passed away while on a Texas hunting trip. With his death, the nation’s highest court went from potential sleeper issue in the president election to front and center, kicking and screaming.
This is the first time since 1968 that an opening on the Supreme Court coincides with the final year of a Democratic presidency. It’s a story worth retelling, as we could be headed down the same road.
In 1968 the drama began when then-Chief Justice Earl Warren announced his retirement. Warren didn’t want a potential Nixon White House choosing his successor, so he asked LBJ to make a lame-duck appointment.
LBJ's choice: Abe Fortas, a Supreme Court associate justice and confidante of the president. And to fill Fortas’ seat: an appeals court judge named Homer Thornberry.
Why Thornberry? He was a fellow Texan and longtime buddy of Johnson's. LBJ, ever the great congressional chess master, figured the move would calm down the Senate’s conservative southern Democrats.
However, Johnson’s scheme soon fell apart.
Fortas was roughed up by the Senate Judiciary Committee – the first sitting justice compelled to testify at his own confirmation hearing. Fortas failed to ease concerns that he was too close to the White House. Then came the news that Fortas had made money on the side teaching a summer college course. LBJ had to withdraw the nomination; Thornberry’s nomination also died on the vine, without the courtesy of without a Senate vote.
The point of this anecdote: it’s easy for a nomination to go off the Senate rails. And in today’s dysfunctional Washington, it’s a distinct possibility. Here's why:
Cruzing For A Bruising. As he seeks the nation’s highest office, what has been noticeably absent from Texas Sen. Ted Cruz’s core message – reflected in his best sound bites, put forth in his paid advertising – is in-depth talk about the Supreme Court.
That’s something of a surprise given that Cruz is the strictest of constitutionalists. Besides, constitutional law ain’t exactly Donald Trump’s thing.
That now changes. And Cruz, as a sitting member of the Senate Judiciary Committee, gets this gift: should confirmation hearings proceed, a chance to browbeat whomever Obama puts forward.
Like Joe Biden lording over the likes of Clarence Thomas and the late Robert Bork, it’s Cruz’s chance to dominate nationally televised proceedings (talk about free advertising). Cruz is no stranger to threatening Senate shutdowns. Would this be the mother of all election-year filibusters?
Balance of Power. But that’s assuming a presidential pick could even make it out of the Senate Judiciary committee, which is no given.
One of the more uncomfortable give-and-takes within Senate GOP circles has to do with the treatment of Obama judicial picks. The more conservative element, including Cruz, wants a no-fly zone. The committee’s chairman, Texas Sen. John Cornyn, has left a window cracked open.
Here’s an early indication, put forth on Saturday, of just how bitter of a divide it is – this comment by a spokesman for Utah Sen. Mike Lee, like Cruz a Judiciary member: “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia.”
What we have is a test of just how dysfunctional Washington truly is. Traditionally, a president dealing with a Congress run by the loyal opposition will float a few names; senators will huddle behind closed doors to hash out their differences.
But not in this day and age.
You can thank the Bork/Thomas hearings for that. Also, Obama doesn’t have the strongest of working relationships with lawmakers – there’s not much of a reservoir of good will in the way of friendships and past favors on which to draw.
Getting a nominee a hearing would entail serious Senate horse-trading. But in a bitterly divided Washington where politicians are already moving on to the next administration, that may be closer to beating a dead horse.
The thing to look for now is a redefinition of the term “nuclear option” – the chance that Obama might make Scalia's replacement a recess appointment.
Obama’s Legacy. George W. Bush had two Supreme Court picks (John Roberts and Samuel Alito). So too did Bill Clinton (Ginsburg and Stephen Breyer) and Bush 41 (Thomas and David Souter).
Add Scalia’s replacement to Sonia Sotomayor and Elena Kagan and that gives Obama three picks, the most since Ronald Reagan.
But then toss in the possibility of Ginsburg and maybe Breyer (he turns 78 in August) retiring before Obama's term end and that puts us at FIVE picks for this president – the most since Eisenhower (although, by the way, FDR had eight Supreme Court picks).
Before Scalia’s passing, the Supreme Court had four reliably conservative votes and four reliably liberal votes, with Justice Anthony Kennedy the crucial “swing vote”. Were Obama to choose Scalia’s successor, the court becomes 5-3 in favor of the progressive justices.
However, Kennedy turns 81 during the first year of the next president's term which means November’s winner will likely get to choose his successor.
A 6-3 liberal court moving forward? That might prompt the Republican Senate, which may not even be Republican a year from now, to put on brakes.
Hillary’s Fortunes. Someone else who’s watching this drama unfold: the Democrats’ likely nominee.
As a candidate Hillary Clinton has struggled to find a message that’s compelling and authentic. And she has struggled to connect with the youngest portion of the Democratic electorate.
In theory, a Senate Judiciary hearing gives Clinton a chance to connect with the youth vote on a series on issues likely to be put forward by conservative senators: abortion, privacy, executive authority, immigration, climate change, and so forth.
It also gives her an opening to refocus the conversation from her progressive credentials to the importance of winning in November – electability one of the few areas where she’s scored well with the progressive grassroots.
The area of immediate impact: the 2016 Senate battleground. Republican incumbents who are struggling to hold on in Wisconsin, Ohio and Pennsylvania now have a new means of rallying the conservative grassroots. Likewise, Democratic activists will make a hard sell to their base.
It's just what America needed: one more issue to raise temperatures inside the Beltway – and nationwide.
Bill Whalen is a research fellow at Stanford University's Hoover Institution, where he analyzes California and national politics. He also blogs daily on the 2016 election at www.adayattheracesblog.com. Follow him on Twitter @hooverwhalen.