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The Supreme Court and the 2016 Elections

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Very important point by Julia Azari about how the Supreme Court vacancy will affect the November elections and their aftermath:

Since Justice Antonin Scalia’s death over the weekend, one of the big debates has been over how the fight to confirm a new Supreme Court justice will reshape the 2016 presidential election. Although some pundits and scholars have, fittingly, written elegant and well-argued pieces about how the election will become a referendum on the Supreme Court and the issues the court is likely to examine in the coming years (abortion, voting rights, campaign finance, state redistricting rules), the actual impact on voting of a protracted fight that fails to fill the Supreme Court vacancy may be marginal — at least in the general election (the primaries may be a different story).

For starters, research shows that the Supreme Court is a well-respected institution but not very important for most voters. The contemporary classic work on Americans’ political knowledge, “What Americans Know About Politics and Why It Matters,” reports that few citizens can name more than one Supreme Court justice. A 2012 survey found that two-thirds couldn’t even name one.1 So most people aren’t paying attention to the court.

Also, voting has become polarized and predictable — leaving few voters to be swayed by a fight over the court. Political scientists (and economists) have known for some time that the two-party vote can be predicted pretty accurately using the “fundamentals” — economic performance, whether the nation is at war, and the popularity and duration of the White House incumbent. The high levels of polarization in the electorate make persuasion difficult. Some of the contentious issues taken up by the court have cut across party lines in the past — immigration, campaign finance, even abortion. But this is increasingly uncommon in American politics. Party conflict defines disagreements about economic, racial and cultural issues. So, it’s unlikely that campaign messages about abortion, voting rights and affirmative action would change voters’ minds in November.

The Supreme Court fight might provide fodder for some dramatic campaign commercials, but their impact will probably be limited.

I’ve already lost count of the number of pundits who have suggested that Scalia’s death will make the 2016 elections a “referendum” on the Supreme Court or some such. But it’s nonsense. The effect will be very marginal.  Not only the Supreme Court but issues like abortion and especially campaign finance are low-priority issues in federal elections.  The vacancy might (or might not) motivate some voters to come out. It might move a few of the relatively small number of actually swing voters. If a blue-state Senate race is close enough, a marginal effect might matter. But that’s it. Ayotte, Kirk, et al. damned well could still win even if their obstructionist behavior is, in itself, unpopular. General elections aren’t referenda on anything.

And this is why there will be a constitutional crisis over Supreme Court nominations eventually even if it can be avoided in 2017. McConnell has simply figured out what you can get away with. It was probably better for the country when congressional leaders believed in (or acted as if they did) the noble lie that voters care about Getting Things Done and procedural stuff like a Supreme Court that can resolve circuit splits. The problem for the country going forward is that McConnell isn’t wrong.

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  • Joe_JP

    This has nothing to do with someone who comments at this blog, surely.

    Seriously, yes, the election will be to elect a POTUS and members of Congress, which will involve a range of things. This probably will have some notable effect in some cases, but so will other things.

    Not choosing a justice now so voters can decide etc. like it’s a ballot measure is to me a silly mindset. They might in effect do that (along with picking a President who will do various things over other things, many of them also very important), but that isn’t quite the same thing.

    Obama choosing someone and various Democrats at least partially (really … seriously) based on good government reasons supporting that as a good government function is part of why I support him. It is sad that this is notable and maybe some day we will have Republicans who think the same way even if on policy grounds they still will be wrong.

    • Scott Lemieux

      This has nothing to do with someone who comments at this blog, surely.

      In this case, honestly, it doesn’t. A lot of the erroneous things Dilan believes are idiosyncratic, but this is a pretty widespread fallacy.

      • Joe_JP

        Ah okay. Guess it was good I didn’t just include the first sentence.

        • Dilan Esper

          Scott’s no coward, at all. If he wants to call me out specifically, he calls me out by name.

          I have a ton of respect for him, even if I think he is wrong, and as far as I can tell that feeling is completely mutual.

          • Joe_JP

            My tongue was at least partially in cheek anyway.

            • q-tip

              By definition, Dilan’s name is not Shirley.

              Nor is Scott’s, more to the point.

  • DrDick

    I would generally agree with this, with the minor amendment that it may have a somewhat greater impact on Republican turnout, given that demonization of “liberal activist judges” has been a staple of the conservatives for my whole life and has only gotten worse.

    • Rob in CT

      I worry about this too. But that may already be baked into conservative turnout.

      One beneficial thing about wingnut outrage is that it now appears to be pegged at 11 24/7/365, so maybe there’s no way to increase it further?

      • Mark Field

        Peak wingnut is a lie.

        • Rob in CT

          I almost waffled back again and included that.

          But I’m talking about turnout here. Peak wingnut isn’t necessarily the same thing as maximum turnout of angry conservative white people in an election…

      • kped

        I agree with Rob, I think it is baked into conservative turnout. Anti-Abortion zealots vote in every election they have, so I’m not sure it will increase conservative turnout.

    • CrunchyFrog

      I think it’s the opposite. GOP voters vote, period. They are going to be at 100% of their potential vote attendance in November regardless. For Democratic voters, on the other hand, the number voting varies greatly with the situation. I could see giving the SCOTUS appointment a lot of news coverage boosting the Democratic turnout by as much as 1 or 2%, all other things being equal.

  • Rob in CT

    Definitely it will be an uphill battle to convince our fellow citizens (or even just fellow Democrats) that the Supreme Court is very important – important enough to decide one’s vote.

    We should try anyway. We should not expect to have much success (as you say, the impact on the election is almost certain to be marginal).

    • Bob Loblaw Lobs Law Bomb

      But is it as important as which candidate you’d rather have a beer with?

      Joe and Mika will be back after the break with their take!

      • Scott Lemieux

        As someone who never watches Morning Joe, I watched some of the Trump thing last night. Zeeee goggles, dey do nutting.

  • LeeEsq

    All the design flaws in the American political system are becoming apparent and there is really no way to fix them. The Constitution provides a theoretical way to fix the system but a new Constitutional Convention is unlikely and if it happens will include just as many Super-Madisonians who want a Balanced Budget amendment as it would parliamentary advocates that want to eliminate first past the post voting.

    • howard

      in particular, the design flaw that separates the executive from the legislative.

      i was saying to my 85-year-old mother that i truly don’t see how this gets fixed short of another civil war, which makes me very depressed for my 11-year-old son….

      • Denverite

        First, are you a lot younger than I picture in my head, or did you have you son relatively late in life? (My daughter is almost that old, and I’ve always pictured myself — perhaps incorrectly — as a lot younger than you.)

        Second, if it makes you feel any better, if it comes to it, I’d put the odds of a peaceful breakup as a lot higher than the odds of a non-peaceful one.

        • howard

          i’m an old dad!

          i will settle for a peaceful breakup but i honestly don’t see how we get there.

        • Michael Cain

          So, what sort of partition do you see as feasible? What kind of terms?

          • howard

            i honest to god don’t have a good idea, i only have a simplistic idea.

            my simplistic idea is that we kick out all the former confederate states on the grounds that they did not in fact really rejoin the union after all, that those of us in the remaining states commit to continued support of the confederate states at the level they’ve grown used to (i.e., more federal funds flow into these states in spending than flow out in taxes) for at least 25 years to make it easy, and that there be an open migration period foro anyone who wants to move in either direction.

            this is, of course, completely unrealistic and just shows i don’t have any good ideas….

          • Denverite

            Sort of the same process as we saw in the 1780s and 1790s but in reverse and in slow motion. States who want it are given a lot more autonomy. States that prefer a more federalized system stay together. Over several decades that evolves into a situation where we either have two nation-states (the South and everyone else), or we have three (northeast plus Great Lakes, south plus most of the plains, and west), with big chunks of the northern mountain and Pacific Northwest being annexed by Canada. But that’s likely a century out.

        • Matt McIrvin

          I just keep thinking that in every country where people decided to murder millions of their fellow citizens and plow them into mass graves, everyone probably thought it was unthinkable right up to the moment that it actually happened.

      • tsam

        I don’t know about another civil war-or even actual secession. Most of that talk is just fodder for dumbshits.

        Another convention in this climate (where people like Louie Gohmert, Ted Cruz and Rand Paul are actually being elected) would be disasterous. At this point all we can do is keep those fucking Republicans away from the executive, and try to stomp them out nationally.

        The biggest problem is the grossly uneducated voting public. Nothing can be fixed until people show up to vote and stop the howling and poop-flinging about social issues that don’t mean anything to them other than maintaining a status quo that allows them to oppress other people.

        • howard

          the problem at hand is that we have a two-party system in which one of the parties behaves like a parliamentary party and the other doesn’t.

          in the end, the parliamentary party can prevent government from functioning altogether.

          and i don’t see what fixes that problem, and i don’t see a constitutional convention for all the obvious reasons, so….

          • tsam

            Republicans will be forced to back it down at some point. All of their bullshit is slowly turning into electoral poison at the national level. Hopefully this all happens before they inflict too much damage.

            • howard

              i have to say that if i’m a right-winger (and it’s dangerous for me to try and project the thinking of people i truly don’t understand) i would think things are going fine: sure, i seem to be having trouble winning the presidency, but i don’t seem to be having much trouble winning at the state level or keeping control of congress.

              i mentioned to my mother in the same conversation that moses had to lead the slave generation of jews for 40 years in the desert so that they would die out, so i assume it’s a minimum of 40 years until they “back it down….”

              • Hogan

                People are living longer now. Call it 60.

              • humanoid.panda

                But things are not going well, from the right winger perspective! To wit:
                1. Gay marriage.
                2. Obamacare
                3. If Hillary wins, the best they can expect is a divided court- with the lower courts heavily weighted towards Democrats.

                • so-in-so

                  Wingers are NEVER happy. During the Bush era when even more stuff was going their way the were apoplectic any time a liberal failed to agree that all their plans were splendid and simply HAD to work. The angriest of them really won’t be happy until they have a theocratic dictatorship that enforces all their preferences by force.

              • tsam

                sure, i seem to be having trouble winning the presidency, but i don’t seem to be having much trouble winning at the state level or keeping control of congress.

                Sooner or later that will come to an end as well. The world is changing, and they’re either going to have to change with it or be marginalized.

          • xq

            I can see two possible fixes that don’t involve civil war or military coup.
            1. One party becomes completely dominant
            2. The executive continues to expand in power at the expense of the other branches.

        • Ahuitzotl

          The biggest problem is the grossly un mal-educated voting public.

          Nothing can be fixed til you stop teaching them to be lickspittle worshippers of authority large and small

  • jim, some guy in iowa

    1860 would be the exception to the rule, yes? or-?

    • Scott Lemieux

      The effect of Dred Scott on American politics has been massively, massively overrated. Had the Supreme Court not taken the case I think things would have played out in pretty much exactly the same way.

  • Murc

    K-Drum linked to an interesting poll this morning about what people think about whether or not the Senate should vote on a Supreme Court nomination this year.

    What was interesting was not the partisan breakdown, which was to be expected; a supermajority of Democrats want a vote, a supermajority of Republicans do not.

    No, what interested me was the nature of the question itself. It wasn’t “Should the Senate confirm an Obama nominee” but rather “Should it vote on one.”

    And that’s intriguing, because it implies that the general public assumes “vote on” is a synonym for “confirm.” Like, neither side even seemed to consider the possibility that you can have a vote without confirming a justice.

    Maybe I’m reading too much into it.

    • Incontinentia Buttocks

      Very interesting poll….but two thoughts:

      1) The general public didn’t write the question, so it’s hard to conclude from the question itself anything about the general public’s attitudes.

      2) The question does suggest that the GOP has won (however briefly) Round 1 of this fight. We’re actually arguing over whether or not the Senate should even consider a nominee. The goalpost has, at least for the moment, been temporarily moved, at least as far as the media is concerned.

    • Bruce Vail

      To me the most interesting thing about that poll was that only 49 percent of respondents had a positive opinion of the Court.

      I would have guessed that it would be much higher.

      • Rob in CT

        Nobody trusts anything anymore (except the military, apparently).

      • howard

        well, if i had been polled, i have a positive opinion about the idea of the court, but this court? not so much….

      • Joe_JP

        Yeah, it has dropped and Scalia didn’t help much, but that’s pretty high for a government institution all the same.

        • Bush v. Gore pulled the curtain back, I think, and to some extent Citizens United reinforced the perception that the Court is just another political body. On some level Scalia’s writing may have also de-mystified the institution; even though I don’t find him funny it had a talk radio quality and a simplistic analytical approach that may have made a large number of people think that the job was really as simple as having an opinion.

  • joe from Lowell

    Individual attacks and talking points are most effective when they further an already-existing narrative that resonates with the public.

    Such as, broken government, irresponsible obstructionism, putting partisanship above the public interest, etc.

    Whether Mike Dukakis looked good in helmet was only important because it fed into a frame his opponent was pushing, and that the public was already inclined to believe.

    • Rob in CT

      Such as, broken government, irresponsible obstructionism, putting partisanship above the public interest, etc.

      Even shorter: party of NO!

      Speaking of Dukakis, did you see the Slate interview w/him?

      • joe from Lowell

        No, a new one?

        The last thing I read about Mike Dukakis was that he collects his neighbors’ turkey carcasses after Thanksgiving, freezes them, and then uses them to make soup for the rest of the year.

        Which is pretty damn awesome if you ask me.

        • Rob in CT

          Yeah, new:

          http://www.slate.com/articles/news_and_politics/interrogation/2016/02/michael_dukakis_on_the_bush_family_antonin_scalia_and_donald_trump.html

          There is some FP stuff in there that will probably grind your gears (Dukakis sounds closer to my views than yours, though I don’t endorse everything he says, particularly about Russia).

          • joe from Lowell

            Age makes fools of us all. During a phone interview:

            I want to turn to the Republican race briefly—

            A young woman who was a student of mine, and is going to go to Congress, just walked into my office. What do you think of her?

            What do I think of her?

            Yeah.

            I haven’t met her.

            Well, she’s dynamite. Anyway, go ahead, keep talking.

            I saw him speak at the Massachusetts Chapter of the American Planning Association when it was held in Lowell. He was great. That was about 11 or 12 years ago.

            • Rob in CT

              That was the oddest bit, for sure. It definitely made me wonder if he was getting a little senile.

              • joe from Lowell

                Sad. A truly great man. He would have been a great president.

              • scott_theotherone

                That didn’t read like senility to me at all. It sounded like an incredibly laid back guy having a casual conversation he was enjoying, and perhaps flirting ever so slightly with the female who walked in. I thought it was weird but kinda charming.

        • Lee Rudolph

          Also awesome (and just recently learned by me): his mother rounded out her life in my very own Old Fogies’ Home!

  • petesh

    I agree that the Court itself will be a minor influence, but the issue has the potential of heightening the political divide. Cruz just dared “liberals” to advocate “unlimited abortion on demand” and abolish the second amendment and a bunch of other rubbish. I sadly await the response that Cruz wants to drive poor women to back alleys and abolish all restrictions on guns etc etc.

    As to the constitutional crisis: that’s on McConnell. My hope for Obama was that he’d be the new FDR; my fear was that he’d be the American Gorbachev, presiding over the destruction of an equilibrium without creating a new one. (My expectation was neither.) Trump as Yeltsin? It’s not totally absurd, but it would be almost totally awful.

    • Murc

      Cruz just dared “liberals” to advocate “unlimited abortion on demand” and abolish the second amendment a bunch of other rubbish.

      Are… those things we’re not in favor of?

      Because those sound like two things we’re totally in favor of.

      • I am against abortion unless the woman demands one. Undemanded abortions should remain illegal.

        • Ted Cruz should not be able to get an abortion under any circumstances up to and including the forcible injection of alien xenomorph larvae.

          • postmodulator

            The Company will probably keep him away from medical care until the chestburster form matures.

            • NBarnes

              Cruz lost his health care due to Obamacare, so there’s no medical care to be had even if the Company wanted to provide it. Tidy.

      • Steve LaBonne

        Count me in for sure.

      • petesh

        No, we’re in favor of regulated abortion (licensed medical practitioners, working as women want); and a sensible interpretation of the 2nd amendment. My point is that Cruz is calling for a debate on principles, which is fine, but using high-school-level phrasing and word games, which is not fine at all and serves only to heighten the emotional content.

        • Murc

          and a sensible interpretation of the 2nd amendment.

          There are plenty of entirely sensible interpretations of the 2nd Amendment that include an individual right to bear arms. Indeed, I subscribe to that interpretation myself; I would feel hypocritical demanding expansively individualistic interpretations of all the other Amendments but not for 2 because I hate it.

          Which is why it should be abolished. It’s actively harmful.

          • petesh

            Personally, I probably agree; politically, fuhgeddabatit.

        • JL

          Is there anyone out there who believes that “abortion on demand” means “Doesn’t have to be performed by a licensed medical practitioner”?

    • CrunchyFrog

      This was the Cruz quote in full:

      We’re going to have an election, and if liberals are so confident that the American people want unlimited abortion on demand, want religious liberty torn down, want the Second Amendment taken away, want veterans’ memorials torn down, want the crosses and Stars of David sandblasted off of the tombstones of our fallen veterans, then go and make the case to the people.

      You know, this is exactly what most GOP people think Democrats want. He doesn’t see this as an exaggeration for effect. Amazing, isn’t it? Yes, one of the two parties is completely batshit insane.

      “Religious liberty”, by the way, party means the right to force other people to do, or not do, certain things because of your religion. But is also means the right to discriminated against others because of your religion. Funny, to liberals “religious liberty” means the right to believe what you want and to go to the church of your choice if you want.

      • gmack

        Right. In the peculiar world of some contemporary Republicans, religious liberty now means the establishment of religion. (Keep in mind, for instance, that Cruz has stated that no one who does not start every day praying “on his knees” deserves to be President, which I take to be a more or less explicit religious test to hold office).

        • DrS

          Devout Muslims pray on their knees 5x a day. Surely this makes them more qualified than those fundy Christian slackers.

  • CaptainBringdown

    It was probably better for the country when congressional leaders believed in (or acted as if they did) the noble lie that voters care about Getting Things Done and procedural stuff like a Supreme Court that can resolve circuit splits. The problem for the country going forward is that McConnell isn’t wrong.

    To paraphrase Darth Cheney, McConnell proved that norms don’t matter.

    • lsimmonds

      Well, it was a pretty good run anyway. I wonder what comes next? The Trump dictatorship? Will we still celebrate the 4th of July?

    • Bill Murray

      Cliff always mattered more than Norm

  • People, for the most part, only know what they need to know when they need to know it. When you are discussing sports, for instance, you retrieve what you need to know about the sport, or the sports figure, and when you are doing something else you tuck that information away in the back of your head. Most people in this country simply don’t need to know–or rather don’t think they need to know–about the Supreme Court most of the time. The only time they do need to know about it is when a particular decision is reported to them loudly and often enough, and when that decision is something they believe will affect their every day lives or (more importantly) the every day lives of their enemies.

    But to follow the sports metaphor to its logical conclusion–anything can be turned into an occasion for discussion of sport, because sports identification is tribal and tribal identification (being binary, oppositional, important to the ego) remains one of the most important ways a person understands the world around them. For that reason the the Republican party, which has successfully turned almost everything in this country into a “referendum” on something and a shibboleth of tribal membership the Supreme Court (and everything else) can become important at any moment. But only for those who need to have their spinal voting reflex gigged, like a pithed frog. The rest of the country will remain sublimely unconscious.

  • Bruce Vail

    It’s also my gut feeling that this issue is unlikely to have any influence on the outcome of the 2016 general election. Yes, you’ll see campaign operatives try to stimulate the ‘base’ of both parties with appeals on this issue, but it’s hard to see how it will cut through the campaign clutter.

    Scary headlines about ‘Constitutional Crisis’ are more likely to create yawns than to stimulate new voters.

  • Incontinentia Buttocks

    I tend to agree with Scott and Julia Azari about this. This election will be fought over turning out the base.* On the margins, it’s possible that the Supreme Court vacancy will make a difference (as we learned in 2000, some elections are close enough that everything makes a difference), but I’m far more worried about signs that the economy is weakening. The economy will make a difference.

    * Pro tip for those who live online: the Democratic base does not include the tiny percentage of people who think there is no difference between the two major parties.

    • Pro tip for those who live online: the Democratic base does not include the tiny percentage of people who think there is no difference between the two major parties.


      Oh thank god.

  • MDrew

    An 8-judge court can resolve circuit splits. It just has to make sure to do it, as opposed to being assured by arithmetic from the outset that, whatever it does, it will resolve every circuit split, every time.

    • Joe_JP

      yeah … circuits don’t just split on the ideological issues that result in 5-4 splits a fraction of the time. They might be less exciting to many people — the patent case coming up, for instance.

  • randy khan

    I’m wondering if filling the vacancy (not the way I’d bet things will go, but not completely out of the question as more Republican Senators begin to waffle) would defuse the Court as an issue for some of the people who care about it.

    Prior to Scalia’s death, the general speculation was that someone from the left(ish) wing was likely to go next, moving the middle vote way to the right if it was a Republican picking and leaving things status quo if it was a Democrat. If the slot gets filled by Obama, the next vacancy would either make Kennedy the swing vote again (if a Republican is picking) or simply reinforce the then-existing majority on the left(ish) side. It seems like a much less dramatic difference.

  • Bruce Vail

    The alternate view is that Obama’s appointment of a middle-of-the-road black man, who will be denied confirmation by the Senate, will stimulate needed black voter turnout for Democrats in the swing states. Given an otherwise close election, the higher black turnout could make the difference.

    • randy khan

      That also sounds like an argument for nominating Loretta Lynch.

      • Bruce Vail

        Yes indeed. Were I betting man, I’d bet right now that Obama nominates Lynch…

        • If he did (and it would be great) and she survived the confirmation battle would we then have to do without an AG for the rest of Obama’s term because the Republicans would spite hold that appointment hostage. (In order to think what the Republican Senate will do, at any one time, I have to think what a spiteful teenager would do if they were a rampant narcissist, sociopath, and sadist. This includes temper tantrums, acting out, blowing things up, taking hostages, hurting hostages, and suicide.)

          • Bruce Vail

            Hmmm…I was assuming that Lynch would remain AG while the confirmation process lurches toward an inevitable defeat for her. She would be much more valuable politically to the Democratic Party as a sitting AG ove the next 10 months…

          • randy khan

            I don’t know what Lynch would do if nominated and waiting for potential confirmation. I presume she’d recuse herself from some things but not from others. (For instance, anything pending in front of the courts right now she’d have to skip as a Justice anyway, so there’s really no reason why she’d need to stop working on those things.)

            In practical terms, if she were confirmed (given that it likely wouldn’t happen until at least July and more likely August or September), there really wouldn’t be time to nominate and confirm a new AG or, even if that somehow happened, for the new AG to do very much, so I don’t think it would be much of a loss.

          • ScottK

            I submit that we’re going to need a solid, confirmed AG to investigate all of the voter suppression the Republicans have planned.

            I don’t know what can be done about it, but a certain amount of bloody murder can be screamed, and that’s not nothing,

    • howard

      i read down the entire thread to see if someone would make this point: i do believe that the one thing about the court that could influence turnout is if the gop can’t keep themselves from insulting the candidate for his or her gender, sexuality, or racial background.

      • …if the gop can’t keep themselves from insulting the candidate for his or her gender, sexuality, or racial background.

        So let it be written. So let it be done.

      • Joe_JP

        I guess so but is low black turnout in a presidential election year for a Clinton (black voters supported Bill and from what I gather, Hillary didn’t have issues with them when running for senator either; will she really have to worry about them in November?) really up there on concerns?

        Nominating Lynch will in some way interfere with his AG and give Republicans more reason to demand internal documents and so forth. It seems more trouble than its worth. Seems, if he wanted to go that route, more sensible to pick one of the recent black judges (there is at least one of each sex) confirmed.

        To me, the issue would be bringing out the base as a whole and perhaps some swing voters. Judge Jane Kelly, from Iowa, for instance might do some good overall. I really don’t know how much this matters though. Guess I can see it happening.

        • howard

          fwiw, i expect obama to again nominate a woman.

        • Bruce Vail

          Yes, Joe, I think it is a concern. From everything I’ve read, Democratic and Republican campaign operatives expect a drop off in the very high black turnout numbers produced by Obama in 2008 and 2012. But keeping Florida, Ohio and Virginia in the Democratic column will be essential to a Clinton (or Sanders) victory, so a very explicit racial appeal may be what is required.

          • Joe_JP

            Okay. Still, it would be a question of net benefit. Lynch seems more trouble than it’s worth for Obama personally. Better off appointing one of the black judges.

            • randy khan

              More bang for the buck from Lynch, who has a much higher profile than the two judges.

              • Joe_JP

                But, it will hurt Obama more and as Scott notes separately Republicans will have more cover.

                Nominating a black judge would promote black turnout too and be less problematic for other reasons.

      • Richard Gadsden

        I do hope that if Obama decides to go that route, he very carefully briefs the nominee that they’re going to face massive racist, sexist, homophobic abuse from the GOP base and probably from the Senate.

        Because they have to walk in with their eyes open and prepared to take the bullshit with the grace and self-control that Jackie Robinson had.

        • Lee Rudolph

          Because they have to walk in with their eyes open and prepared to take the bullshit with the grace and self-control that Jackie Robinson had.

          Alternatively, they have to walk in wearing a suicide vest, and ask the Democrats to temporarily leave the room.

  • Alworth

    “The vacancy might (or might not) motivate some voters to come out.”

    I’d add some nuance to this theory. It will motivate the bases, for whom this is one of the most important issues. this could easily play a role if, say, Trump is the nominee. He might normally expect to lose some portion of hardcore base voters in a regular year, but those voters, knowing a SC vote is on the line, would be less willing to stray.

    • But hardcore, base, Trump voters (or other conservative base voters) already think they are in a war for the country’s very future against a muslim terrorist usurper and his femmo nazi benghazi ball buster or the cranky socialist guy. The stakes are so high for these people already that, frankly the supreme court doesn’t register except as another place where they can feel their REpublican establishment has let them down. They already think that and they will continue to think that even if the Senate refuses to nominate anyone at all. Their passion for Trump comes from the fact that he is willing to publicly offer to kill his enemies (their enemies), rape their women, and tear off their heads and shit down their necks. There is literally nothing else that Mitch McConnel or the Senate Republicans could offer to do to Obama’s nominee that will pacify them. Merely refusing to consider a nomination is going to be taken as a sign of quisling weakness.

      • Peterr

        On the Democratic side, OTOH, certain nominees would indeed improve the turnout of the base — especially if the GOP was seen as obstructing an otherwise qualified person simply because it came from Obama. For instance, if Obama nominated Paul Watford, an African-American, the dynamics could really affect the race here in MO, both the presidential election and also the re-election campaign of Roy Blunt and various other statewide contests. The GOP base is already cranked up hard, but if Blunt et al. come out hard against an African-American judge like Watford, the voters in St. Louis and KC would go nuts and turnout on the Democratic side would spike.

  • Thrax

    Yeah, and add to this (a) the ability of the GOP nominee, and any remotely vulnerable GOP senators, to distance themselves from the worst of the obstruction (“if only Sen. Grassley would hold a hearing! Can’t blame it on me”), and (b) the difficulty of arguing about a nominee’s judicial philosophy in even remotely comprehensible terms that don’t consist of “he/she would uphold/overturn Roe/Citizens United,” as that info isn’t going to be available. If GOP candidates and their water-carriers run around asserting that Sri Srinivasan or Paul Watford is a dangerous radical, how are you going to refute them? “No, he’s not, look at these ERISA cases he decided in a very sensible way”?

    I would like to think that GOP obstruction will be political poison, but someone needs to explain the mechanism by which that happens. I don’t think “he’s obstructing Obama’s nominee and leaving the Supreme Court short a member” is going to do it.

    As for turning out the base…maybe. Presumably, that’s where the demographics of the nominee come into play. There just isn’t a lot of evidence that the opportunity to influence the Supreme Court gets the Democrats’ base off the couch.

    • howard

      i personally think the gop’s smarter move is to give the nominee hearings, advance it to the floor, and then vote him or her down.

      • mds

        An actual Borking, in other words, as opposed to the horseshit version whereby the poor nominee was somehow simultaneously singlehandedly blocked in committee by Teddy Kennedy and filibustered by Democrats. While being forced to wear a ridiculous hat.

  • njorl

    The only quibble I have is that everything that gets covered in elections is marginal. The biggest factors are tribal voting patterns and underlying economic conditions. Those are fixed and boring, so no one talks about them. Then there’s a stack of marginalia (including the identities of the nominees) which can sometimes decide the election.
    There are years like 2008 where none of the marginalia matters at all. Then there are years like 2000, where a vacant supreme court seat could have had a meaningful effect on the race.

  • Nick056

    McConnell has simply figured out what you can get away with. It was probably better for the country when congressional leaders believed in (or acted as if they did) the noble lie that voters care about Getting Things Done and procedural stuff like a Supreme Court that can resolve circuit splits. The problem for the country going forward is that McConnell isn’t wrong.

    Scott –

    Can you expand on this? I agree with your overall point, but I’m not sure how “resolving circuit splits” is procedural. What do you mean by that? Let’s imagine the DC Circuit en banc would have upheld the decision of the 3 judge panel in Halbig. Would resolving that split have been a ‘procedural” question?

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