What would happen if a Supreme Court vacancy opened up in 2015 after a Republican takeover of the Senate? I agree that it’s pretty much this:
Now imagine a different possibility. Suppose one of the five Republican-appointed seats opened up. None of them would voluntarily surrender a seat at the end of a Democratic president’s tenure, of course. But when the hypothetical gavel transfer to Mitch McConnell takes place next January, Antonin Scalia and Anthony Kennedy will both be 78 years old. The actuarial odds of a 78-year-old man dying within a given year are approximately 5 percent — we will have two of them, with two years of Obama’s term each. (The odds of death rise to 5.6 percent at age 79, for those morbidly inclined.) We are not talking about a freak occurrence.
What would happen then? Would a Republican Senate let Barack Obama — fundamental transformer of America, shredder of the Constitution — appoint a new swing justice? Given a backdrop in which conservatives, having grown deeply pessimistic about their political future, have invested deeply in a legal movement that uses aggressive readings to roll back the state? With every conservative interest group mobilizing for battle, with a vast array of social and economic policy hanging in the balance?
t may seem implausible that Republicans would simply refuse to allow Obama to appoint any justice to such a vacancy. That is only because things that haven’t happened before are hard to imagine. But such a confrontation is not only a logical outcome but the most logical outcome. Voting to flip the Supreme Court would be, if not a political death warrant for a Republican Senator, then certainly taking one’s political life into one’s own hands. Politicians do not like political death warrants — certainly not for the benefit of the opposing party’s agenda.
The modern pattern in American politics is that tactics that are legally available, but never used for reasons of custom, eventually become used. The modern pattern is also that the Republican Party, which is the most ideologically cohesive and disciplined party, leads the way. McConnell did not create this pattern, but he is an important innovator.
McConnell was among the first political leaders to grasp that Republicans had everything to gain and nothing to lose from withholding support for every major element of Obama’s agenda — that the old Beltway folklore, which warned the opposition party that voters would punish them if they appeared obstructionist, had no basis in reality. Most people pay no attention to the details of policy, and form rough judgments on the basis of how much noise and controversy rises out of Washington. “It was absolutely critical that everybody be together because if the proponents of the bill were able to say it was bipartisan, it tended to convey to the public that this is O.K., they must have figured it out,” he confessed. Political scientists understood this reality perfectly well, but it was utterly strange to the old-line purveyors of Washington conventional wisdom. McConnell moneyballed the Senate.
Again, I think we’re about to see particularly vividly that the advise and consent power was a serious mistake. There really should have been a supermajority removal power rather than the requirement to get active consent. The system worked tolerably for longer than could have been expected because of the enduring relevance of the Civil War in constructing political coalitions well into the 20th century, and the norms that developed from that. But like the initial decision to make the vice president the runner-up in the electoral college, the advise-and-consent power isn’t really consistent with with a party system, and now that we have ideologically coherent parties it’s frequently going to be a disaster.