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February 24, 2016

More than anything else right now President Obama wants to insure that his successor is a Democrat. If the next president is a Republican, everything President Obama was able to achieve via executive order would be undone post-haste, and his most important legislative accomplishments would undoubtedly be scaled back or reversed. The negative consequences of GOP control of both Congress and the White House would be catastrophic.  Until the untimely death of Antonin Scalia, Obama’s 2016 electoral calculations were even simpler.

Prior to Scalia’s passing, a White House victory for the GOP this year would have meant GOP control of all three branches of the federal government, with a high probability of opportunities to increase the conservative Supreme Court majority thanks to immanent retirements.  Now, President Obama is faced with a tricky situation. On the one hand, he has an opportunity to dramatically change the direction of constitutional interpretation in America (in the short run at least) by appointing a liberal jurist to the Supreme Court, transforming the High Court from a 5-4 conservative majority to a 5-4 liberal majority. However, were he to succeed in this effort, he would weaken his party’s most potent argument in the 2016 presidential contest, namely that a GOP victory would result in Tea Party control of all THREE branches of the federal government and the hasty repeal of the 20th Century.

Luckily for President Obama, Senate Majority Leader McConnell has his own dilemma. He has to prevent Obama from transforming the Supreme Court into a majority-liberal Court in order to keep the far right wing of his party happy, but he also has strong incentives to protect the GOPs Senate majority and to increase the odds of electing a Republican president this year, both of which could be jeopardized by openly obstructing the President’s efforts to appoint Scalia’s replacement.

What a pickle for both McConnell and Obama. The President has to balance his twin desires to advance liberal jurisprudence and to be succeeded by a Democratic president willing and able to defend and advance his accomplishments. The Majority Leader needs to balance his own jurisprudential and electoral concerns. He must figure out the best way to both avoid a liberal Supreme Court majority on his watch and protect his party’s Senate majority in the 2016 elections. Ironically, the latter could be aided by giving the President’s High Court nominee fair consideration and possibly even an affirmative vote.

Which leader’s situation is more fraught with peril? Hard to say, but I do think I know which leader’s situation is easier to resolve. Both leaders are trying to balance long term ideological and programmatic goals and short term electoral goals, but only one of them can best do this by prioritizing short term electoral goals.

The only way McConnell could cave on Obama’s Supreme Court nomination in order to protect his senate majority (and to weaken Clinton’s argument for election) would be if the President nominated someone whose jurisprudential philosophy were unclear enough that McConnell could plausibly argue for it to his GOP colleagues. We’ll file that under “not likely.”

For President Obama, one more Supreme Court appointment would not be worth much if a Republican President replaced him, both because such a president (with a GOP House and Senate) could reverse most of Obama’s achievements anyway and because he would most likely also have an opportunity to swing the Court back to a conservative majority during his time in office. Therefore, IMHO President Obama’s choice is the easier one.  He should nominate someone whose qualifications are beyond reproach, but whose jurisprudential philosophy is liberal enough to make it impossible for McConnell to confirm. This would greatly assist Hillary Clinton’s ability to frame the presidential race as a choice between unleashed Tea Party extremism and a third term for the Obama Administration, which at minimum translates into “even if you are not presently thrilled it could be MUCH worse.” It also helps Democrats challenging vulnerable GOP Senators from purple and blue states this year by allowing them to tie these incumbents to both right wing extremism AND obstructionism. Well played, it could be a heck of a two-fer.

So, based on this analysis what should we expect to happen here? Who will blink? Who will swerve? Who knows? If Trump locks up the Republican nomination, however, I suspect McConnell’s incentives may be altered in that he may make protecting his Senate majority a much higher priority than helping his party’s presidential nominee.

president obama, Antonin Scalia, Senator McConnell, 2016 Election

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