The big news, obviously, is the death of Supreme Court Justice Antonin Scalia, and Senate Republicans’ refusal to allow President Obama to appoint a replacement. Plenty of others have commented on how we got here, and what this means. I’ll ask the strategic question: what happens next?
Mitch McConnell fights political battles with every tool he has. But he isn’t stupid. What, then, is his endgame here? Obviously, he hopes a Republican will win the White House in November. Preferably, a real Republican, unlike Trump, who might nominate either Gary Busey or Meatloaf to the Supreme Court. But McConnell can’t count on a Republican victory in November. He needs to plan for what happens if Hillary wins, and takes office with a year-old Supreme Court vacancy.
Obviously, if Hillary wins with a Democratic Senate majority, Hillary nominates somebody to fill Scalia’s seat, probably the same person Obama nominated just to stick it to Republicans, and Republicans filibuster. When Democrats changed the rules in 2013, they prohibited filibusters for judicial nominations below the Supreme Court only. If Republicans filibuster a Supreme Court nomination, Democrats just finish the job and get rid of the filibuster entirely. Republicans won’t like who gets the seat, but from a strategic point of view, the bigger problem is if Hillary wins, and Republicans retain the Senate.
McConnell might say something like the following: the Court has gone a year with eight members. It didn’t always have nine anyway. So, we should just keep an eight-member Court. Tied votes will simply go to the lower court ruling. No appointments for Hillary. If she tries, Republicans will accuse her of court-packing.
Then, of course, the moment a Republican gets into the Oval Office, we’re back to nine. The problem is that this would be pretty shameless. Senate majority leaders have lost their seats over less. In 2004, the only incumbent Senator to lose his seat was then-Minority Leader Tom Daschle, and the major issue was a Democratic filibuster of some of George W. Bush’s judicial nominees. McConnell needs another plan.
The key may come from 2011. In the summer of 2011, Congress had to raise the “debt ceiling.” The debt ceiling is the limit on the total value of outstanding bonds that the Treasury can issue. Since Congress instructs the Treasury to disburse more than it takes in (spending levels are set higher than tax revenues), the only way the Treasury can disburse all the money it is told to pay out is to sell bonds to raise money. If they can’t issue more bonds, they have no legal recourse. They can either break the law and issue more bonds than they are allowed to issue, or fail to pay out the money they are told to pay out. Without a debt ceiling increase, well, uh, messiness ensues.
The problem in 2011 for McConnell was that he knew the debt ceiling needed to be raised, but he also knew that his own party was scared to vote for it. Voting for a “debt ceiling increase,” just sounds bad, and none of the congressional Republicans wanted to be seen voting for a bill that Obama would eventually sign. McConnell’s solution: hand authority over to the executive. McConnell thought the best way out for everyone was to change the law on the debt ceiling. Under McConnell’s proposal, the President could unilaterally raise the debt ceiling. Congress, if it wanted, could vote to block the increase. Then, the President could veto it, and the debt ceiling increase would only be blocked if Congress managed to over-ride the veto. That would let Republicans oppose a debt ceiling increase without actually stopping it from happening. McConnell was forced to back down from the proposal because, well, it was transparent cowardice.
But it sets the template for a way out. Abolish advice and consent, at least in its current form. A reform might look something like this: for judicial and executive branch nominations, the president can make appointments unilaterally. The Senate can block an appointment, but only with a 2/3 supermajority. That would allow a Democratic president to make appointments without forcing any Republican Senators to get their fingerprints on it. Yes, this would take a constitutional amendment. Yes, that is incredibly difficult, time-consuming, and such efforts usually fail. Does anyone have a better idea?
Of course, this only works if the process starts before the election. If Hillary wins, Republicans couldn’t get on board with handing so much power over to her. On the other hand, if it begins now, Republicans can tell themselves they might win in November, and their own president would have vast, new powers.
This also fits McConnell’s general approach to things. In 2013, Mitch McConnell announced that the Senate Republicans— the minority at the time— would use the filibuster to block President Obama from filling any vacancies on the second-most important court in the country. Obviously, the President and his party’s Senate majority could not abide that. It gave the Democrats no alternative but to use the “nuclear option,” and declare, by majority vote, that judicial nominations (below the Supreme Court) could not be filibustered. It was a bold move since actually changing the rules requires a 2/3 vote, but at the time, the Democrats had no other choice because to do otherwise would cede control of the courts entirely to Republicans. They simply couldn’t accept an arrangement in which only Republican presidents get to fill judicial vacancies.
The best interpretation I could offer at the time was that McConnell wanted to get rid of the filibuster. Why? Two possibilities. First, perhaps he expected to become Majority Leader (which he did), and wanted the filibuster out of the way. He just didn’t want to press the button himself. Second, perhaps he just wanted to spare Republicans from having to vote for any of Obama’s nominees. He knew the Senate needed to confirm at least some nominations, and with the filibuster intact, that only happened if some Republicans voted for cloture. With the filibuster gone, no Republican would have to vote for one of Obama’s nominations.
And that’s where we are now. McConnell has to know that Democrats can’t cede the right to make court appointments. He also knows that no Republican wants to vote for a Democratic nominee for anything, least of all the Supreme Court. With a Republican majority in the Senate, something has to give. Either Republicans have to be willing to vote for Democratic nominees, or they have to pass the buck.
If McConnell is looking for a way out, then, he will propose a constitutional amendment along the lines of the idea above. Is this practical? Hell no. Is it defensible on first principles? Of course not. It’s a horrible idea, and a completely impractical one given how difficult it is to push through a constitutional amendment. But, it might be McConnell’s only way out. It could even be pitched as part of a deal. Obama yields on filling the Supreme Court vacancy, and Republicans agree to help abolish advice and consent.
Perhaps this isn’t the plan. Remember how the cylons supposedly had a plan? Maybe McConnell’s plan is about as well thought-out. Maybe McConnell is just hoping the Republicans get control of everything in 2016, and that gives him a way out. Sticking your head in the sand, though, isn’t a plan.
One way or another, this aggression will not stand, man.