Republicans face a no-win situation after loss of Scalia

Flags are flying at half-staff across our nation in mourning of the loss of Supreme Court Justice Antonin Scalia. Many are asking about the impact of his loss for the GOP. Not only do conservatives lose a champion and powerful voice for conservative causes in law, but this loss also provides a no-win political environment for Republicans. The politics in the aftermath of Scalia’s death is nothing short of disaster for the GOP in terms of the presidency and control of the Supreme Court.

{mosads}The refusal to approve a new justice until after the election brings the Republican-controlled Senate into a constitutional clash with President Obama that some believe could bleed into the next presidency. In such a wild presidential campaign, it also opens up a deeper fissure between parties and within the Republican Party. The delay could knot up some cases in a 4-4 tie, harm judicial administration and impact the legitimate role of the court as final arbiter of our law. However, the question of “who wins?” and what this means for party strategy to obtain power (in the short- and long-term) are serious and worth addressing now as this clash begins.

In the short-term, there is the impact on the battle for the presidential nomination in both parties. For the GOP, I believe that this question is more critical. Republicans simply can’t have the Supreme Court and social issues as the dominant issues of the election. This is reality after the decision to block any nomination by Obama. Candidates on the far right will push the party further right on social issues like abortion. The party hopes these issues will mobilize voters, but also wants these issues to remain in the background. Scalia’s death most certainly puts evangelical interests in the driver’s seat of this election, and with a full tank of gas. Conservative evangelical activists care deeply about social issues like abortion, prayer in school, religion in the public square, and gun rights. These issues are extremely divisive and do not have the same appeal to moderates or independents and may even wind up mobilizing Democrats to vote. With the court as focus of the GOP race, winning will mean appealing to the much more conservative base on these divisive and unpopular issues. Candidates like Sen. Ted Cruz (R-Texas) and Donald Trump are already there, pushing conservative control of the Supreme Court as a primary issue. More moderate candidates who wish to remain in the running will move in that direction.

As it turns out, just this weekend on “Meet the Press,” Cruz made the strongest of statements against any Obama nominee, referencing “abortion on demand” and the “rewriting of the Second Amendment” by a more liberal court. Shortly after, an important “establishment” candidate, Sen. Marco Rubio (R-Fla.), joined the fight and pushed right on the court, as well.

Dragging out the nomination of a new Supreme Court justice puts conservative social issues on the front page and the minds of the entire nation. Appeals to this conservatism will benefit candidates like Cruz and candidates who move quickly in that direction. However, dragging out the confirmation (or lack thereof) of Obama’s candidate for the court keeps these issues on the front page into fall, after the Republican nominee has been chosen. That is a time when the party will need to move back to the middle on issues to attract independents and moderates to win in the general election. Filibustering any nomination and advancing the social issues appealing to only 30 percent of the American public will drive the election in this scenario and will, without doubt, harm the GOP’s presidential aspirations.

In the longer term, of course, if those aspirations are harmed enough, a new Democrat in the White House will choose a nominee for the current vacancy and others to come. Justice Ruth Bader Ginsburg is 82, Justice Stephen Breyer is 77 and Justice Anthony Kennedy is 79. Under the scenario above, losing the presidency means four-to-eight years of new justices. How long can the Republican Senate filibuster this nomination and those of others? What impact will that filibuster have on the ability of the Supreme Court to do its job? The filibuster would likely further politicize the court and also lead to ties that likely change many cases under consideration and also those to come.

It is this stark for the GOP. Some say it is a choice between the Supreme Court and the presidency, but I believe the strategy to battle Obama’s potential nominee is a no-win proposition. Holding the line for the Supreme Court will likely mean four-to-eight years of liberal justices under a Democratic President Hillary Clinton or Bernie Sanders. True, the Supreme Court is a rallying cry for conservatives and will raise turnout among conservatives — but that will also remind Democratic voters of evangelicals’ vision for the court and likely raise turnout among them, as well.

The smart political move is to fight this battle a little, activate the GOP base, take a hard stance to force the president to nominate a more moderate candidate and then cut the losses — approve the nominee and move on to the general election. The problem is that what I saw on “Meet the Press” demonstrates that Republicans cannot; the far right of the party won’t let them. Antonin Scalia’s death, then, is likely a disaster for the GOP.

Hartley is dean and professor of public affairs at the College of Public Affairs of the University of Baltimore. His past research is in law and courts, including federal judicial nominations.