GOP playing a losing hand with Scalia's court seat.

Ok so as I'm sure everyone knows by now, Supreme Court Antonin Scalia died yesterday, and it appears his death has set off a bit of a firestorm.

See normally when a Supreme Court Justice dies, they are replaced fairly quickly. But not this time.

This time the GOP is deciding to grandstand by doing what they do best.....do nothing. In fact Senat Majority leader McConnell already pledged not to allow a vote on any justice until the next president is sworn in.

Of course like most GOP grandstanding over the last 8 years, the more you look at it, the more you realize the GOP hasnt really thought this through and really are in the process of cutting their noses off to spite their faces.

Ok,so everyday Scalia's seat remains vacant is a day the GOP cant not win at the Supreme Court. As constituted without Scalia the Court contains 4 liberals, 3 conservatives and a swing (Kennedy). What this means is that rather that the 5-4 rulings we have all become accustomed to, in which the only question is what side did Kennedy (or occasionally Roberts) rule on, the most likley outcomes are now a 5-3 liberal win, or a 4-4 tie.

Now in the case of a tie the appeals court ruling (whatever that may be) remains in place, BUT only for that particular courts jurisdiction, and should two appeals courts rule differently on the same issue....well at a national level the federal government is free to pick with ruling they want to follow and ignore the other.

Problem for Republicans is that the Circuit courts tend to be liberal, to the tune of 9 out of 13 of them (at least judging by number of judges appointed by democratic presidents compared to republicans). So leaving legal decisions at the Circuit court level is basically on probibility of having a conservative ruling at the circuit court level a loser for the GOP.

By the way did we mention, Abortion, Immigration, Unions, Affirmative Action, Voting Rights, and Energy are all on the SCOTUS Docket this year? And it was possible the Conservatives could have won on any of these? Yea....well not so much anymore....instead most of these will be returned the Circuit courts, and any challenge to the nations existing laws on this issue will have to start again.


Now I know what your thinking, even if the the GOP didnt obstruct Obama, he wouldnt be appointing a conservative anyways would he?

No......but there was a good chance he could have been made to appoint a liberal swing justice (think like a liberal Anthony Kennedy), given that he has a long history of finding center ground that is 60-80% of the way to the republican position (as he did on Obamacare, the sequester, most of his budgets ect), and as mentioned the GOP does control the senate.....so they are in a position to stop a true liberal.

A position they may not be in for much longer.

See simple math says the Democrats actually have a really good chance of taking back the Senate in 2016, regardless of which party wins the presidency.

So in 2016, there are a total of 34 senate seats up for grabs. 24 of them are currently held by Republicans (12 of which are considered unattainable by democrats) .....only the remaining 10 are held by Democrats, and of those 10, 8 of them are generally considered unattainable by republicans.

So there are really only 14 seats in play, and almost all (12) of those are republican seats. and the Dems only need 5 seats to take back the senate.  (and did we mention 3 GOP seats  are in states the Dems have won in every presidential election year going back 20 years?)

Now because of this natural advantage for the Dems in the senate, the two most likely outcomes (in no order) are a Democratic president and senate in 2016 or a Republican president with a Democratic Senate in 2016.

Problem is, for the GOP's gambit on keeping Scalia's seat empty to work, they need both a republican president and a republican senate. Which is to be fair, the 3rd (of the 4) most likely outcomes.....but at the same time, being the 3rd most likely outcome also means odds are pretty good its not going to happen,

Then their is the additional problem, its not JUST that the republican needs to win the White House, the RIGHT republican (and there really is just one) needs to win the white house.  What do I mean by that? well lets take a look at the candidates and I'll show you.

Donald Trump:

Here's a guy the Republican establishment doesnt like.....and guy likely to appoint 1 of 2 types of people to the court: People who knows (who are likely to yes men from New York....so probably wont get backed even by republicans) or people who are viewed by everyone as being as crazy as he is (again his nominees may get blocked by republicans)

also it should be noted, we cant discount the chance of Trump (who was himself until very recently a liberal) nominating a person he knows well who is also liberal, it wouldnt be totally surprising if he did get a nominee the Dems actually liked and the GOP hated)

Ted Cruz:

Not sure if youve noticed, but Senate Republicans pretty much absolutely hate this man, and its on a personal level.....not to mention most of them tend to think hes only in it for himself and doesnt care about the party.

Which means I dont think the Senate republicans are really going to fight to get this man's nominees appointed.....they may even block his top choice nominees on the chance the GOP controls the senate, because they will likely claim that his nominees are crazy.

It other words from a PR standpoint neither of these are great choices for the republicans, and opposition to eithers appointments might be bipartisan meaning the GOP cant even make polticial hay out of it and that seat could be vacant for a long time.

John Kasich and Jeb Bush:

So in the possibility that the GOP control the Senate, these guys are probably the GOP's best bets.   They would quickly find and get confirmed legitimate but sane right wing judges.

BUT in the mathematically much more likely scenario that the Democrats hold the Senate....well John Kasich is currently campaigning by directly playing to democrats as to how similar in view he is to them, and Jeb Bush isnt doing it openly, but on a lot of positions is actually pretty close to Barack Obama.

In other-words with a Democratic Senate, these two are the GOP's worst nightmares, as the nominees they would appoint are likely going to be nearly the same as whoever Obama would have appointed with the current GOP controlled Senate. Most likely that person would wind up being at best a second swing vote in the mold of Anthony Kennedy.

Meaning that for either of these guys, in the most likely senatorial election outcome, the GOP will have gained nothing from grandstanding as far as who got appointed, but also have to deal with the backlash of obstructing for a year AND have another republican appointed justice their base is going to hate.

Which brings us to the final Republican candidate Marco Rubio (all due respect to Ben Carson, but hes got no chance in hell)

Rubio is kinda a mix here. With a republican senate, hes likely identical to Bush and Kasich.....but with a Democratic Senate he's closer to Cruz and Trump. By which I mean he's likely to fight alot longer to try to get an actual conservative on Scalia's seat, and that seat may be vacant longer than the GOP intends.

Which means really for this gamble to pay off for the GOP, even out of their own candidate, the nominee better be Marco Rubio.....any of the other 4 guys are a problem (cause again a vacant SCOTUS seat kinda favors Democratic ideology just based on the makeup of the circuit courts)

And again, thats just the GOP's own nominees.

What if a Democrat gets elected? How badly could this blow up in their face?

Well a Democratic President with a Republican Senate is probibily the least likely outcome (given that most of the vulnerable GOP senate seats are in solid democrat or swing states in presidential elections, so this only happens with a massive amount of split ticket voting) so the odds are extremely good that if a Democrat gets elected, they will have a senate that will allow them to appoint anyone they damn well want to the Court.

And Hillary Clinton has said she would consider appointing Obama.

Thats right, the Republican gambit here to stop Obama from influencing the Supreme Court has a chance of winding up with Obama ON the Supreme Court. Talk about a backfire for the Republicans if that happens. (and even if she doesnt go with Obama, I doubt the GOP would love her nominee anyways)

But as bad as that would be by republican standards.....it could get worse. After all if Hillary's not the Democratic President, Bernie Sanders is.

And what do you think the chances are of him appointing anyone less liberal than say Ruth Bader Ginsberg? yea I didnt think so.


So yea to sum up I really dont "get" the long term gamble here. The odds of it paying off for Republicans seem much lower than the odds of them getting someone as bad or worse than anyone they think Obama could appoint, especially when combined with their odds of being in a postion to do something about it.

------------------------------------------UPDATE-----------------------------

NBC news has an article up this morning (2/16/16) pointing out another thing to consider here.
After the November election the new congress takes their seats January 3rd, the new President January 20th.

What that means is that for 17 days President Obama will have a new Senate to work with....specifically a Senate that has good odds of being controlled by the Democrats. (especially since as long as Joe Biden (a Democrat) is VP, they only need 4 seats to control the senate)

And the Filibuster rule can be amended by simple majority vote on day one of any senate session

So Obama could nominate a super liberal justice on January 3rd 2017, (as opposed to the more centrist one hed be forced to appoint now)  and the senate would have plenty of time to confirm this person......and likely would in the scenario in which the GOP won the presidency but lost the Senate.

So yea, thats to NBC pointing that out, the chances of this working out in the GOP's favor are basically totally riding on them winning BOTH the senate and presidential races.   

----------------------------END UPDATE------------------------