Scalia’s Death Just Ignited an Ugly War for the Supreme Court

The leadership tests will begin with Obama’s choice of a nominee and everything that will ensue.

The Supreme Court vacancy war—it’s more than a mere battle—will be a revealing test of leadership, and you have to wonder if anyone will come out of it looking good. So far everyone involved is just doing what he or she must.

Soon after Justice Antonin Scalia died on Saturday, President Obama said he would nominate a successor; he must do that because it’s his job and because it’s an excellent opportunity to hammer on the Republicans if, as Senate Majority Leader Mitch McConnell has promised, they refuse even to hold hearings on the nominee. McConnell, in the heat of an election year in which his party’s prospects look iffy, had to come out swinging. Most senators and presidential candidates in each party have lined up appropriately.

That is all just scene-setting. The leadership tests will begin with Obama’s choice of a nominee and everything that will ensue. Supreme Court nominations have often been a blood sport in which both parties have participated with relish, unearthing damaging facts from a nominee’s past and attacking nominees brutally—think back about the Republicans’ assault on Abe Fortas in 1968 or the Democrats’ fight against Robert Bork in 1987. Both nominees were rejected.

But both nominees did get hearings. If Obama nominates someone whom he had previously nominated to a federal judgeship and who was confirmed by the Senate unanimously—at least a couple of potential nominees fit that description—will Republicans be able to argue persuasively that this time that same person does not merit a hearing? How will individual senators of either party who are up for reelection behave as election day draws near? To save their own skins, will they reject their party’s position? Certain senators in both parties could actually face that choice. And even if this vacancy doesn’t get filled until the next president takes office, the fight is still likely to be extraordinarily nasty, and it’s plausible to expect that a few undecided senators will come under crushing pressure. How will they behave as leaders?

A larger question: Regardless of the outcome, will voters see the process as yet another example of Washington dysfunction in which elected leaders show they’d rather lay waste to the opposition than carry out one of their most important constitutional duties?

Making that prospect all the more depressing by contrast is Justice Ruth Bader Ginsburg’s tribute to Scalia. As justices, they were extreme opposites; a voting analysis by the New York Times in mid-2014 showed that they voted differently more often than almost any other pairing on the court. Yet they were the best of friends. They and their families spent New Year’s Eve together every year. Ginsburg’s statement after his death called him “a jurist of captivating brilliance and wit.” She concluded, “It was my great good fortune to have known him as working colleague and treasured friend.”

That’s what most Americans want desperately in Washington—opponents who can maintain their positions while respecting and maybe even liking one another. As the war over Scalia’s successor plays out, that’s not what they’re going to get.

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