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February 14, 2016


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"Why would the inauguration of a new Democratic president in 2017 change the calculus? Is there a reason for the Republicans to confirm any Democratic nominee to replace Scalia?"

One, there's a nontrivial chance of a Democratic Senate majority next year with a Democratic President. In that case, problem solved.

Two, there's an IMO much smaller but still real chance of a Republican President with a Republican Senate. Once again, problem solved.

Three, assuming we get another Democratic President but the GOP continues to hold the Senate -- IMO the most likely outcome -- then the calculus changes because of the electoral cycle. One thing that's driving the current response is a perception that the GOP just might be able to gain the Presidency next November. In this scenario, that hope has disappeared. Another is that it's uncomfortable and dangerous for GOP Senators to vote for a Democratic Supreme Court appointee, especially close to an election. There are 54 Republican Senators, and 24 of them are up for re-election in November. Many of them are (reasonably) nervous about being primaried and/or being attacked or abandoned by major donors. Come January, that will no longer be an issue.

(True, they can simply vote "no"... but it still puts them on the spot. So much easier to just punt!)

I won't say for certain that sanity would prevail in this scenario... but Sotomayor and Kagan both picked up a handful of GOP votes, including some hardline conservatives such as Orrin Hatch and John Kyl. True, that might not be the case in a Senate controlled by the GOP... but the Senate has been confirming Obama's lower court appointments, and I'm not sure there'll be an appetite for a full-blown constitutional crisis next year. (Or at least, not right away.)

Doug M.

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