Lame duck presidents don't get to make successful nominations for lifetime appointments in an election year. Not in 2016. Not for the past 80 years.
It is that simple. And it doesn't matter who the president nominates — even if lightning struck and he nominated an originalist in the mold of the late Justice Antonin Scalia.
President Obama certainly has the authority to nominate a replacement for Scalia.
But the Senate Republicans are under no obligation to hold a hearing much less a vote on that nominee. The decision to deep freeze a nominee is a constitutional one, and a political decision, but it isn't a difficult one. And to make it crystal clear, it isn't about an individual but the institution of the court. Republican Majority Leader Mitch McConnell declared that there would be no confirmations this year even before President Obama declared he'd make a nomination anyway.
Every GOP senator seeking re-election in a difficult race will lose if their party or they individually fold on this issue. Sens. Kelly Ayotte of New Hampshire, Ron Johnson of Wisconsin, Mark Kirk of Illinois, John McCain of Arizona, Rob Portman of Ohio and Pat Toomey of Pennsylvania have little choice but to stand with McConnell and Senate Judiciary Chairman Chuck Grassley and refuse hearings and votes for the president's nominee or be soundly defeated in the fall. Their party's loyal base will not abide round heels on this issue. Rather a Democrat but an honest one than a round-heeled Republican.
Nor should the GOP base hesitate to fight over this issue. The Supreme Court has inserted itself into every manner of controversy over the past 30 years, from abortion to guns to marriage and now immigration. It has assumed power never intended it by the Framers, but it is what it is and there is no going back. Thus who controls the court controls the meaning of the Constitution.
If there is anything worth fighting for it is the future of the Constitution, and thus Senate Republicans have no choice here. Those that disagree may as well stop campaigning, and they will certainly stop getting campaign support from me. Their Democratic opponents will trounce them if even a small fraction of the GOP base is betrayed on this huge issue.
Democrats spent Sunday morning on Twitter proclaiming their outrage at the GOP's plan of inaction, thus conveniently forgetting the actions of Democratic Sen. Patrick Leahy. First chair then ranking member of the Senate Judiciary Committee from 2001 to 2005, Leahy led a blockade of dozens of President George W. Bush's judicial nominees who had the votes to be confirmed if Leahy had allowed them. Leahy was backed in his absolute obstructionism by Senate Majority Leader Harry Reid. The blockade of judicial appointments began during the first year of Bush's first term, not at the end of a second term, after a record number of confirmations to the bench and two to the Supreme Court, as is the situation with Obama.
Both Leahy and Reid argued then, with no objection from 2004 Senate candidate Barack Obama, that the Senate was not obliged to take up any judicial nomination it did not want to consider.
They were right about the power to delay and deny in the Constitution, but wrong about the political consequences of their choice. Democrats lost the Senate majority in 2002 because of their judicial blockade, and W won re-election in 2004 in part because of their minority-backed filibusters.
The Leahy/Reid blockade built on Sen. Ted Kennedy's infamous ambush and slander of Judge Robert Bork in 1987 when a vacancy arose upon the retirement of Lewis Powell from the highest court. When Bork was defeated and a second nominee was withdrawn, President Reagan nominated Anthony Kennedy in November of 1987 and he was confirmed early in '88. There is no parallel to these circumstances, and those stretching the facts still have to confront the Democrats undoing of all past practice with the 2001-2005 blockade.
Leahy and Reid made the blockade bed in which they must now lie. There is great justice in that.
And perhaps there is another Great Justice like Antonin Scalia waiting to be found come 2017, whether nominated by President Hillary Clinton or her successful GOP opponent.
But the next president will get that choice. And every month, day, hour, minute and tweet that the GOP spends defending the Constitution from another "living Constitution" liberal justice selected by President Obama, the better the odds of GOP victory in the fall. Folding on this central issue would kill GOP turnout. Fighting will energize the GOP base and, even more importantly, center the election on the biggest issues outside of war and peace that drive the country's political debates.
Justice Scalia was a giant of the law. His passing has opened a giant discussion on the role of "a majority of nine unelected justices," as he once put it. He must be amused. He usually was.
Hugh Hewitt is a nationally syndicated talk radio host, law professor at Chapman University's Fowler School of Law, and author, most recently of The Queen: The Epic Ambition of Hillary and the Coming of a Second "Clinton Era." He posts daily at HughHewitt.com and is on Twitter @hughhewitt.