It would be a catastrophic political mistake for Senate Majority Leader Mitch McConnell (R-Ky.) and other GOP leaders in Congress, not to mention Republicans running for president, to campaign until Election Day on a unified platform of forcing a government shutdown of the U.S. Supreme Court — one that could dramatically increase the chances that Democrats win the presidential election and make sweeping gains in the 2016 congressional elections.
By refusing to confirm any nominee of President Obama to succeed the late Justice Antonin Scalia, Republicans would disrupt two judicial years of Supreme Court practice and the rule of law in America and make a mockery of McConnell’s promise to bring comity, civility and regular order to the Senate once Republicans were given control.
{mosads}If the GOP scheme were to prevail, McConnell and Republicans would undermine the court not only for the remainder for its current term but for its next term as well. Even when the court convenes on the first Monday of October 2016 for its next term, the GOP-imposed judicial havoc could continue until well into 2017, or whenever the new president nominates, Senate Judiciary Committee considers and the full Senate votes to confirm a nominee for the vacant seat.
Democrats will charge, and a large majority of independent and moderate voters will agree, that Republicans have taken their politics of obstruction to the draconian extreme of a two-term government shutdown of the Supreme Court. Democrats will charge, with good reason and strong chances of success, that the GOP Supreme Court shutdown scheme embodies everything Americans dislike about Washington and everything that brings Congress to such high levels of public disrepute that, according to RealClearPolitics, more than three-quarters of Americans disapprove of Congress.
In the presidential campaign, this GOP scheme is a gift to Hillary Clinton. The former secretary of State now faces an enthusiasm gap that would be erased and reversed many times over by the huge and powerful surge of energy and activism that will be roused throughout the Democratic base. This Republican attempt to steal justice in America by negating two substantial victories in presidential elections in which voters chose Barack Obama to have the authority to nominate Supreme Court justices is shameless.
Another big winner of the GOP scheme will be Sen. Bernie Sanders (I-Vt.), who will argue correctly, as will many Democrats, that Republicans are trying to fix the game of Supreme Court nominations to extend for a generation the dominance of mega-wealthy individuals and meta-financed super-PACs in U.S. politics, which were given the power to purchase and own our democracy by the Citizens United decision that could be reversed if an Obama nominee were confirmed.
The biggest losers of the GOP Supreme Court scheme will be Republican senators and candidates running in New Hampshire, Ohio, Wisconsin, Illinois, Florida, Pennsylvania and other states in which close elections could well be tipped to Democrats by a roused Democratic base and outraged moderate and independent voters, who will conclude that the Republican Senate itself represents everything they detest about the partisanship and dysfunction of Washington.
Obama could seek consensus support for a nominee such as Sen. Jack Reed (D-R.I.), a former Army Ranger and graduate of West Point with a Harvard law degree, a master’s degree from the Kennedy School at Harvard and extensive law firm experience. Reed has earned great respect from his Democratic and Republican colleagues and has deep knowledge of national security, which would be valuable to the court in an age of terrorism and would follow the tradition of former Justice Hugo Black, who first served in the Senate from the state of Alabama.
Or Obama could nominate California Supreme Court Justice Mariano-Florentino Cuéllar, who is admired throughout the state and possesses an undergraduate degree from Harvard, a law degree from Yale, and a Ph.D. from Stanford. Cuéllar would bring brilliance and diversity to the court. A GOP attack against him would turn waves of Hispanic voters against Republicans for a generation.
Budowsky was an aide to former Sens. Lloyd Bentsen and Bill Alexander, then chief deputy majority whip of the House. He holds an LL.M. degree in international financial law from the London School of Economics. He can be read on The Hill’s Contributors blog and reached at brentbbi@webtv.net.