Scalia hearings will be unique moment for hyperpartisan Washington
Whether held before this fall's elections or after, the hearings to replace Supreme Court Justice Antonin Scalia will be be difficult – and reveal a lot about Washington.
The death of Justice Antonin Scalia, the leader of the United States Supreme Court's conservative wing, creates a unique moment in America's hyperpartisan political era.
Not since the first year of the Clinton administration, when President Clinton replaced coservative-leaning Justice Byron White with Justice Ruth Bader Ginsburg has a "conservative" seat opened during the administration of a Democratic president – or vice versa. In other words, this represents the first time in more than two decades that a president could potentially shift the balance of power on the Supreme Court rather than simply maintain it.
Moreover, the court is currently poised on an ideological knife-edge. With Justice Scalia's seat now vacant, a left-leaning replacement could give that wing of the court a crucial five-vote majority.
In that way, the next few months – or perhaps year – provides an unprecedented litmus test for how deeply partisanship has changed the chemistry of American politics. Senate majority leader Mitch McConnell (R) of Kentucky is already saying that he will delay hearings to confirm a replacement until after the election – something the Senate hasn't done since the 1850s.
But even then, there is a significant chance that little will have changed. Four years ago, Republicans hoped to get their way on Obamacare and other issues by retaking the Senate and the presidency in one fell swoop. Republicans failed on both counts. The American voter did not solve gridlock.
At some point, either now or after the elections, one of the two parties is going to have to accept that it will not win the most consequential Supreme Court nomination in more than a generation. With the outcome affecting everything from illegal immigration to contraception, that will be an enormously bitter pill, particularly with an election year now ramping up the political volume.
So far, even in the hyperpartisan era, Congress has found ways to back down from such political precipices, such as the fiscal cliff or the debt ceiling crisis. But the Supreme Court is a special case, and its recent rulings on gay marriage and Obamacare will have thrown that into even sharper relief.
At issue is whether the constitutional process followed by Congress for generations can withstand the partisan divisions at work in Washington today, or whether it needs to evolve to match new political trends.
Clearly, the Republicans have more at stake. The worst-case scenario for Democrats is simply a return to something like the status quo of recent years – a right-leaning court with Justice Anthony Kennedy acting as the swing vote. For Republicans, the worst-case scenario is the creation of a new, five-judge liberal voting bloc under which "no conservative precedent would be safe," writes Mark Joseph Stern of Slate.
This prospect is particularly galling to those on the right because Scalia was "the most important Supreme Court justice of his era," writes conservative New York Times columnist Ross Douthat.
Presidential candidate Sen. Ted Cruz (R) laid out the stakes in a debate Saturday night.
"If we get this wrong, if we nominate the wrong candidate, the Second Amendment, life, marriage, religious liberty, every one of those hangs in the balance," he said.
But delaying confirmation hearings also creates a risk for Republicans. Most obviously, a Democrat could win the White House, putting the process back to Square 1. But what if a Republican did win? Would Senate Democrats cooperate after being, in their eyes, politically hoodwinked? They could filibuster any nomination.
It would be ironic if the process ended in Republicans killing the filibuster, one of the most potent weapons of the hyperpartisan era.
One exit ramp would be for President Obama to nominate a moderate, essentially offering to meet Republicans half way.
"There are serious compromise candidates on the current shortlist, extraordinarily qualified moderates like Sri Srinivasan who would likely refuse to overturn treasured conservative precedents like Heller (establishing an individual right to bear arms) and Citizens United (allowing unlimited corporate electioneering)," writes Slate's Mr. Stern. "If the Senate confirmed a Srinivasan-type now, it might have to swallow a slight liberal [Supreme Court] tilt – but it could, by and large, avoid dramatically altering the balance of the court."
The only other solution, realistically, is one inherent to the institution: trusting the constitutional process.
For all the apocalyptic language that will be hurled from the hustings in the coming months, the past year suggests that the answer is not in one side seizing the reins from the other, but in both sides allowing the process to work.
The Senate, run by Senator McConnell himself, has been Exhibit A. For years, former Senate majority leader Harry Reid (D) essentially shut down the processes of the Senate, tightly scripting the Senate's every move from his office. The result was a body that prevented Republicans from hijacking the legislative process but also got very little done.
Since McConnell became majority leader in 2014, he has unfrozen the process. McConnell's willingness to let Democrats participate in governing – together with Democrats' willingness to be a cooperative minority – resulted in one of the more productive Congresses in recent years, said Jason Grumet, president of the Bipartisan Policy Center think tank in Washington, to the Monitor's Francine Kiefer.
Those principles alone wouldn't result in a simple solution. As Senator Cruz noted, there are deep and honest differences between Republicans and Democrats on issues central to the Supreme Court. But for all that has changed during the past day, it seems likely that, even after this fall's election, Washington might end up relatively near where it is now – trying to find some acceptable point between two widely different worldviews.