The Republican Gamble: The Pitfalls of Refusing to Consider an Obama Nomination to Scalia's Seat

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Justice Scalia’s death on Saturday, February 13^th set off a political earthquake, making what was already a very interesting presidential election year even more interesting.  And, as if our politics were not divided enough, Scalia’s death has set up a mega showdown between Republicans in the Senate and the President, and has raised the stakes of the presidential election.  Before Scalia’s body had turned cold, there were announcements on both sides regarding the next nomination.  The President stated that he will, of course, nominate someone in “due time”, while the Republican Senate leadership did not mince words in letting the President know that any nomination by him would in effect be a waste of time.  

It is understandable that Republicans, who are typically conservative in ideology, do not want to see a Democratic president put a third liberal on the bench.  Before Scalia’s death the conservative justices, those appointed by Republican presidents, totaled five and thus made up the majority of the justices, with the remaining four justices being those appointed by Democratic presidents and liberal leaning in ideology.  President Obama appointed two of those: Justices Kagan and Sotomayor.  The next appointment, if made by a Democratic President will tip the balance of the court in favor of the liberal point of view; but if made by a Republican president will maintain the current conservative majority makeup of 5 – 4, since Scalia was a loss on the conservative side.  Alas, the current president has the Constitutional authority to nominate a replacement, and the current president is a Democrat.  Thus the showdown and promised efforts by Republicans in the Senate to delay.

I would warn Republicans that the strategy of delay and deny is a gamble, and a gamble that is fraught with risk.  Here’s why:

Institutional Assumptions

Republicans are gambling on the hope that a Republican will win the election in November and take the White House in January of 2017, a time when they would rather see a nomination made and confirmed since it would be made by a Republican president.  They are also gambling on the hope they will maintain control of the Senate, which they only have control of by just a few seats.  Those are strong assumptions with no guarantee of coming to fruition.  The national electorate leans Democratic currently according to opinion polls that ask Americans to identify their party allegiance.  Second, Democrats have higher turnout in presidential election years than they do in the midterms.  Therefore, Democrats should not again feel the whipping they felt in 2014.  Also, the Electoral College outcome may favor the Democrats, which of course is largely determined by the popular vote and turnout in each individual state.  In 2012, Romney, the Republican candidate, only won two of the many swing states Obama had won in 2008.  Republicans would have to do much better in the swing states in 2016 to take back the White House.  If you look at the margin of victory in terms of the popular vote for President Obama in many of the swing states in 2012, a Republican victory seems a steep hill to climb.  As for the swing states in 2016, the Democratic candidate could lose Ohio, Florida and North Carolina, and still win with 285 electoral votes; 15 more than the 270 needed.

Then, of course, there is the Senate.  If Democrats win the presidential election, it is extremely likely they will gain seats in the Senate since a presidential win would mean a national mood in favor of Democrats.  They may even take back the Senate given the political reality facing Senate Republicans in November of this year.  In 2014, Democrats faced the challenge of maintaining their hold on seats in “red states” that lean Republican and conservative in their political and ideological makeup.  Given the heightened partisanship, this was a difficult challenge that, in the end, Democrats lost.  The Democrats lost enough seats to lose their majority hold on the Senate.  This year, however, will see a turning of the tables.  Most of the one-third of Senate seats up for election in November are held by Republicans, and enough of those are held in “blue states”.  Therefore, it is Republicans that may see losses this year.  Democrats only need to gain about four seats to take majority control of the Senate.  The final outcome may be the worst case scenario for Republicans: a Democratic Senate and a Democratic President. 

Even a loss of one of these would undermine their hypothesis that it is better to delay a nomination until 2017.  A new Democratic president can still nominate a justice, and a Republican Senate that chose to delay in the previous term would not be able to continue with that strategy in the new term.  A win of only the Senate by Democrats, on the other hand, could allow President Obama a chance to rush in the appointment and get it confirmed by the new Senate that takes office the first week of January before his Republican successor is sworn in after mid-January.

The Electoral Risks

Then there are the electoral risks.  A Republican strategy to refuse to consider, hold hearing over, or vote on an Obama nomination for almost a year may undermine them at the polls this November.  This strategy would feed into the already existing narrative of Republicans as obstructionist and anti-Obama whatever the costs.  This narrative gained a great deal of momentum during the government shutdown in October of 2013.  A Republican political strategy that left the Supreme Court short one justice, and risked major decisions facing the Supreme Court to be decided by a lower appellate court would only remind voters of this narrative and feed it further.  Sure, the Republican base will be fine with this trade off of stopping Obama and a liberal agenda in exchange for the cost of leaving the seat vacant for a year or longer.  But it is not the Republican base that will tip the election one way or another.  It is moderates on both sides and independents.  This important group of voters are not willing to sacrifice the functioning of government for an ideological and political agenda.  They want government to function.  If it does not, they will likely blame Republicans and their strategy of delay and deny.  Because the electorate is so closely divided between Republicans and Democrats, it is crucial to win the moderates of both sides and the independents in order to win the election.  Not only does their support impact the chances of the Republican candidate winning the presidential election, it will likely impact the vote for the various Senate seats that Republicans will be defending in November of 2016, especially those in the left leaning states.

A Safer Option, but a Risk Nonetheless

Actually working with President Obama may be a better option for two reasons.  However, the trade-off for working with the president is to upset the base.  As a result, Republicans may choose to wait until the day after the election to end the opposition-laced rhetoric and beginning considering an Obama nomination.  Of course, if they keep the Senate and win the White House they will simply wait out the president.  Unfortunately for Republicans, however, they cannot see into the future.  Therefore, a wait and see approach still means they are taking the electoral gamble of turning out moderates and independents against them, which will fulfill the very prophecy they are seeking to avoid.  Therefore, this electoral risk is the first reason they should consider coming to the table before the election.  The second reason involves the justice they are likely to end up with.

If the President wants to replace Scalia before the end of his term he will have to go with a consensus nominee that Republicans will agree to, or have agreed to in the past (a justice on a lower federal court bench).  This means that a justice that is too far left is not an option for the President.  He will have to go with a moderate, much like George W. Bush had to when he chose John Roberts for the Chief Justice position.  If, however, Republicans refuse to consider a nominee and Democrats have a victory in November, one of two things may happen.  Either President Obama will rush through an appointment in January if Democrats have the Senate but not the White House; or, a new Democratic president will make the nomination.  The worst case scenario facing Republicans, as stated above, is a Democratic Senate and White House.  In two of these three scenarios, the nominee is likely to be further to the left than Republicans would have gotten under Obama if the nomination had been made before November.  If Democrats can make an appointment without facing significant opposition from Republicans, they have the flexibility to nominate a much more liberal candidate than President Obama would under his current constraints. 

It may be the President holding the right cards in this one.  If that’s the case, then he will just let Republicans do what they are going to do.  Either way, he may win in the end.

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The History of State by State Moves to Ban and/or Legalize Same-Sex Marriage

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A History of State Bans and Legalization

History of Bans

So when did the states begin actively either banning or allowing same-sex marriage by defining marriage in a sense that excludes same-sex couples?  Well, the effort to ban same-sex marriage did not actually begin in Alaska or Hawaii.  In 1998, Alaska and Hawaii became the first states to amend their state Constitutions to ban same-sex marriage.  However, nearly several decades prior, states began banning same-sex marriage by way of a state law/statute, a bill passed by the state legislature and signed into law by the Governor.  The first state to do so was Maryland in the 1970's. By the mid 1990's nearly every state in the U.S. had a statutory ban on same-sex marriage.  Amending the State Constitution creates a ban that is a bit more permanent.  A state law can be overturned by the state's own court system as a violation of the state's constitution.  Therefore, to prevent that, some states, such as Alaska and Hawaii, began changing the state constitution by adding amendments that defined marriage as between only one man and one woman and prohibiting state recognition of same-sex marriages done in other states.  Since the ban is written into the state constitution it is automatically "constitutional".  What you are seeing today is the federal court system assessing whether or not the same-sex marriage bans, whether banned by state law or state constitution, violate the United State Constitution, which is supreme over state laws and state constitutions.  Alaska's amendment was just recently ruled as a violation of the U.S. Constitution (October 2014.  For an understanding of national supremacy on this issue see the previous post "Will the Supreme Court Take on Same-Sex Marriage...?".  Other states followed Alaska and Hawaii in amending their state constitutions.  By 2012, well over half of the states banned same-sex marriage in this manner.  This includes Georgia. In voting on a ballot measure in Georgia in the 2004 General Election, 76% of Georgia voters indicated their consent to amending the state constitution, a process requiring voter approval, "so as to provide that this state shall recognize as marriage only the union of man and woman".  Georgia's Constitution as a result of this 2004 ballot measure, now states that:

(a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state. 

(b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. 

History of Legalization of Same-Sex Marriage

Beginning 2003, some state supreme courts begin legalizing same-sex marriage by overturning state statutory bans.  

2003: Massachusetts, begins issuing licenses in 2004

2006: New Jersey

2008: California, Connecticut

2009: Iowa

Beginning in 2009, some state legislatures and governors passed and signed bills into state law that legalized same-sex marriages and allowed for state recognition of same-sex marriages done elsewhere.

2009: Vermont, New Hampshire, D.C. (by mayor)

2011: New York

After 2011, more states see voters approving same-sex marriage through the referendum process, similar to how some states, including Georgia as mentioned above, banned same-sex marriage.  Opponents of same-sex marriage in these states that had state laws overturned or had new state laws passed to allow for same-sex marriage sought to join other states in making bans more permanent by advocating for state constitutional amendments that would ban same-sex marriage.  This is the process that played out in California in 2008.  In 2008, after a California state court overturned that state's law banning same-sex marriage, same-sex marriage opponents put the now infamous Proposition 8, similar to that of Georgia's in 2004, on the ballot allowing California voters to approve an amendment banning same-sex marriage in the California state constitution.  California voters supporting the proposed amendment accounted for about 52% of the vote which was a victory for the opponents of same-sex marriage.  Supporters of same-sex marriage in California then took a suit to the federal district court and have since won that suit, as has happened in so many other states in recent years.  California now allows same-sex marriage. 

As of today and partially as a result of the recent federal court rulings overturning state bans, 27 states now allow same-sex marriage.  This number has increased substantially in just a few years.  In 2013, only 13 states allowed same-sex marriage; and just last summer, only 19 allowed it.  The increase to 27 in such a short amount of time has been a substantial victory for the LGBT community despite their possible dismay at the Supreme Court's refusal to take up the issue which would have set the standard for all 50 states.  The National Conference of State Legislatures offers an updated map of which states allow same-sex marriage and which states do not:

However, use web links by CNN (CNN interactive same-sex marriage status) and the National Conference of State Legislatures (NCSL Defining Marriage) to stay up to date on which states allow same-sex marriage and which states do not allow it since this issue is developing rapidly.  The CNN interactive indicates the path for legalization in that state, for example, recent court rulings, although the map does not yet include the change in Alaska.  For more information on this topic, look out for an upcoming post on public opinion concerning same-sex marriage and broader questions concerning homosexuality in public opinion.

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The State by State March of Same-Sex Marriage Continues: Why Did the U.S. Supreme Court Deny Hearing Same-Sex Marriage?

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We are beginning the week with yet another lower federal court ruling concerning same-sex marriage recognition and licensing by a state.  This time it was a federal court in Alaska that overturned that state's legal ban of same-sex marriage first adopted, along with Hawaii, in 1998.  This week in October, a federal district court in Alaska ruled the state's constitutional denial of same-sex marriage licenses and recognition a violation of the due process and equal protection clauses of the U.S. Constitution.  The 14th Amendment of the U.S. Constitution contains these clauses that are directed towards the states and goes as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Why did the U.S. Supreme Court Deny Hearing Same-Sex Marriage?

All of the federal court rulings of the last year have been from the lower federal courts, the U.S. District courts and the U.S. Courts of Appeal.  Why, though, did the Supreme Court announce last week that it would NOT hear any of these cases from the lower U.S. appellate courts?  The answer is simple.  One factor in the court's decision to take up a case or issue is whether or not there are conflicting rulings at the lower level that would necessitate clarification and the handing down of a clear national standard by the Supreme Court.  In the case of lower federal court decisions on state bans of same-sex marriage, there appears to be no need for clarification from the highest court because the rulings of the lower courts do not conflict.  As of this week, 23 federal district courts, the lowest level of federal courts, have heard same-sex marriage suits.  Of those 22, including Alaska as of this week, have overturned the bans as unconstitutional denials of the 14th Amendment guarantees listed above.  Some of those cases have been appealed to the U.S. Court of Appeals in various circuits and in every circuit court ruling we have had thus far, the court has upheld the rulings of the lower courts that the bans are indeed unconstitutional.  Therefore, there appears to be a great deal of consistency in the rulings of the federal courts as to whether or not the state bans, whether banning by state law or state constitution, are violations of the U.S. Constitution.  The overwhelming answer has been "yes".  When there is consistency there may be little need for the Supreme Court to step in.

What Happens Now?

Since the U.S. Supreme Court declined to hear appeals concerning state bans from the lower circuit courts, we are left with the status quo, which means the justices have left the matter of same-sex marriage to be determined by the states, or as we are seeing, by the lower federal courts to determine the constitutionality of state same-sex marriage bans. As of this week, the trend lines are looking pretty good for advocates of same-sex marriage rights.  Therefore, I cannot imagine that the Supreme Court will take up a same-sex marriage suit in the near future unless we start seeing U.S. appellate courts of various circuits issuing different rulings than we have seen thus far.  For more information, including graphics on the federal court system and the legal progression of same-sex marriage suits, see the previous post "Will the Supreme Court Take on Same-Sex Marriage...?".

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