‘Let’s let the people decide’

The power to nominate justices to the Supreme Court is always in the background during presidential races. However, this election year the issue could be front and center.

Justice Antonin Scalia, the anchor of the high court’s conservative wing, died on Saturday. Within hours, Senate Majority Leader Mitch McConnell, R-Ky., said the new justice should be chosen by the next president. President Obama responded by saying he would nominate a new justice regardless. The fight is on.

Scalia’s seat is critical to the future of the closely divided court. Even a moderately liberal Obama appointee would tilt the court significantly to the left. The president’s script is already written: Send up a liberal nominee, claim his choice is “in the mainstream” as he did with his previous strongly left-wing choices, and accuse the other side of naked partisanship.

But that won’t work this time because Obama has no leverage. The Senate leadership is not obligated to take action on his nominees. The GOP has strong incentives not to let the president fundamentally reshape the court. And the White House cannot win the public opinion war because the key constituency is the Republican base. It is an election year for a third of senators too, and if Republican leaders caved on this issue, they would probably be throwing away their control of the Senate, and maybe their shot at the White House.

Democratic Senate leader Harry Reid of Nevada said waiting until after the election to confirm a new justice would be “unprecedented.” Not true. When a justice died in the election year of 1852, Whig President Millard Fillmore tried three times to fill the seat, and all three attempts were killed in the Democratic Senate. The seat remained vacant until the next president, Franklin Pierce, successfully nominated a successor. And when another justice died in 1860, Democratic President James Buchanan waited until February 1861 to nominate a replacement.

Deferring the nomination process will highlight the importance of the presidential election in deciding who the next justice will be.

Whatever the outcome, voters would know the stakes going to the polls. Let’s let the people decide.