Many commentators have downplayed the significance of a Republican refusal to allow Obama to nominate Scalia's successor. This may be the case in the sense that the machinery of government will continue to function and won't grind to a halt. But it does reflect and will elevate a dangerously corrosive crisis of governance and public confidence in government already gripping the country to the level of a constitutional crisis.
There are two ways to look at this situation. One is that there is a sizable contingent of the Republican Party's voters and among its elected officials that regard Obama as an illegitimate president (this is the thrust of the well-worn attacks on him from the right: he's foreign born; he's a Muslim; he's a socialist or a fascist, etc.). Not surprisingly, these right-wing critics believe that they are entitled, if not obliged, to minimize Obama's power and role in government, despite his being elected twice by clear majorities and even where that role is expressly granted him by the Constitution.
This is rare in American political history and always dangerous in any political system. Accepting the legitimacy of elections and governance by opponents is part of the unwritten foundations of a functioning democracy. The Republicans' conduct reveals the decay of American democracy and constitutional politics.
The second perspective on this situation is to recognize that this is an extraordinary breach of deeply rooted constitutional norms and the spirit, if not the letter, of statutory law.
By statute, the Supreme Court has consisted of nine members since 1869. When Franklin Roosevelt, an extremely popular president fresh from the most decisive re-election victory in U.S. history, proposed a "court packing" plan in 1937 that would enlarge the court to secure appointments favorable to New Deal reforms, he suffered a stinging backlash and defeat from critics who thought it would undermine the court as an institution and violate the established consensus that the court's membership should remain at nine.
By refusing to consider any nominee from a president with near a full year left in his second term, today's Republican majority (in a Senate and Congress at record low approval ratings) is essentially changing the size of the court until they see fit to once again enlarge it. They are breaching settled constitutional understandings, and circumventing statutory law. Their tactics will politicize the court further and further fuel public cynicism toward the political class, Congress, and the court.
Public perception of the court as a thoroughly politicized and partisan institution ultimately could corrode the legitimacy of the court and the sense that its decisions are authoritative and deserve legal deference. It also may well elicit a tit-for-tat response from Democrats who may refuse a future Republican president to nominate justices as we settle into a destructive self-perpetuating cycle of partisan combat over the Court (as we've seen with the lower federal courts already).
However, this may be a crisis we need. During the past two decades, the Supreme Court, or rather its conservative majority, has struck down statutes at an unprecedented rate (exceeding the Warren Court and the court that clashed with FDR). It has overturned long-established constitutional rulings and principles pertaining to campaign finance law, the constitutional status of corporations, voting rights, the powers of the federal government, federalism, affirmative action, and abortion rights, to name but a few areas.
Filling the vacancy left by Scalia's death presents a potential inflection point in the development of constitutional law and the politics that it shapes in the long run. Constitutional law often forces us to confront our most fundamental political and moral values -- and the conflicts we have over them. It also compels us to confront the deficiencies of the constitutional structures of government, an electoral system giving rise to a two-party duopoly, and policy making in an age of vast inequality, growing ideological conflict, and divided government. These features of American politics and government are facilitated in whole or in part by the Constitution as written and as interpreted by the Supreme Court.
We have a rather creaky, veto-prone 18th century Constitution that is poorly suited to a modern democracy. It effectively herds the electorate into a two-party system that the public increasingly resents even as it polarizes them. We have political parties that are more ideologically homogeneous and driven than at any time since the period leading up to the Civil War - within a constitutional framework not designed to function in the face of such deep divisions and irreconcilable positions.
In an era in which these conflicts are growing sharper and deeper, and the institutions of government more dysfunctional, perhaps these issues need to be addressed openly and head-on by the electorate.
If the Senate Republicans stick to their obstructionist "just say no" position, the 2016 election cycle and presidential race will become a contest between, and a referendum on, opposing constitutional visions and values. That is not their goal, but that is what the GOP has blundered into. The Republicans are making a cynical, short-term political calculation. They are betting they can appease their increasingly radicalized base voters without alienating moderates or mobilizing mass voter turnout for the Democrats. It is far from clear that the Republicans' latest escalation in the politics of obstinate obstruction is in their immediate, let alone long-term, political self-interest, or that they will prevail in the coming contest.
It is also all too possible that the 2016 election outcome will perpetuate a government split between the parties and subject to political polarization and paralysis that satisfies no one. This would leave the electorate even more resentful, hostile towards the political elites of both parties, and divided against itself. Such a result would only serve to intensify partisan and constitutional conflicts in ever more poisonous and pathological form. In that case, we will all be the losers of the Republicans' supreme gamble.
Author: John W. Cioffi