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The Game Changer



"The Court claims that the Act must equate federal and state establishment of Exchanges when it defines a qualified individual as someone who (among other things) lives in the 'State that established the Exchange.' Otherwise, the Court says, there would be no qualified individuals on federal Exchanges, contradicting (for example) the provision requiring every Exchange to take the 'interests of qualified individuals' into account when selecting health plans. ... Pure applesauce."

Antonin Scalia, King v. Burwell (2015)

I have followed politics longer — and, as nearly as I can tell, more closely — than most people. Perhaps it has been to my detriment.

A few days ago, I was thinking about the first time I dabbled in predicting the outcomes of New Hampshire's presidential primaries. It was almost 40 years ago — when I told my friend and mentor, Aunt Bess, that Jimmy Carter would win on the Democratic side and President Ford would narrowly defeat Ronald Reagan on the Republican side. I was right on both counts.

I must have been like a novice investor who hits it big the first time he buys stock in a company — and concludes that it is a breeze to make money on the stock market. I must have concluded that I had some special gift for predicting the outcomes of elections — and was, therefore, stunned when many of my predictions in future years fell flat.

People who hit game–winning home runs in their first–ever at–bats are generally due for big letdowns the next time they step to the plate, and I have had more than my share.

Oh, I have had some successes over the years, but not nearly as many as I probably expected I would have. My subsequent predictions, as I say, haven't always turned out so well, and that losing streak has mostly continued since 1976.

I guess the reason why I have continued to be intrigued by politics is that it always seems that something totally unexpected happens to change the trajectory of a campaign somehow. It may not alter the eventual outcome — although it might — but it may change how resounding that outcome is. Was it decisive? If so — or if not — it may be due to a previously unexpected event.

In hindsight such an event may come to be regarded as preordained. Part of our history having an influential role in our future.

These unforeseen events are never quite the same. I guess they are the most obvious examples of Mark Twain's observation that "History doesn't repeat itself, but it does rhyme."

The death yesterday of Supreme Court Justice Antonin Scalia has the potential to be such an event.

Supreme Court vacancies don't come around very often, and such vacancies are even more infrequent in presidential election years. Vacancies caused by death are rarer still.

And it is, I suppose, one of the quirks of American history that presidents are seldom asked to select a replacement for a justice whose views were so opposite of the chief executive's. Some are, but Obama, should he choose to go ahead with a nomination, would be an historical rarity.

It has been 28 years since a lame–duck president had to fill a Supreme Court vacancy in a year when his successor would be chosen. That was 1988 when Lewis Powell retired. Ronald Reagan, who nominated Scalia in 1986, appointed Anthony Kennedy to succeed Powell.

Powell had also been nominated during an election year; Richard Nixon picked him to replace FDR appointee Hugo Black in 1972. But Nixon wasn't a lame duck. Quite the opposite, in fact. He was seeking re–election, which he won in a massive landslide later that year.

And Black hadn't died. He had retired — although he did die eight days after his retirement.

(Nixon also nominated William Rehnquist to succeed Eisenhower appointee John Marshall Harlan that year. Harlan, too, was a retiree.)

Some presidents — Carter, for example — never get to nominate a Supreme Court justice. Most get the opportunity to nominate at least one, but their choices are rarely seen as consequential as this one could — and, probably, will — be.

This country is about as evenly divided as it has ever been in my lifetime. My guess is that it really has been that way for at least the last 25 years. Although much has been made of Democrats winning the popular vote in five of the last six presidential elections and the electoral vote in four of the last six, the margins have been much closer than they tended to be even in the second half of the 20th century.

Even when he was re–elected four years ago, Barack Obama had an historically underwhelming performance — perhaps not as bad as George W. Bush in 2004 but hardly the mandate that most re–elected presidents tend to claim. Until the dawn of the 21st century, presidents who won re–election did so by wide margins.

Obama had a lower share of the vote and a lower electoral vote total than he received in winning his first term. Obama was the first president to be re–elected with a lower share of the popular vote than he received the first time around since Andrew Jackson 180 years earlier.

Only one other president — Woodrow Wilson in 1916 — was re–elected with a smaller share of the electoral vote than he won the first time.

Justice Scalia is widely regarded to have been a stable, conservative voice on a closely divided court. Philosophically, it is safe to say that he and Obama did not agree on many things.

Obama now has the opportunity to nominate a replacement. He's been looking for a way to ensure his legacy after he leaves office, and this could be it. Kennedy has largely been identified as the swing vote on a court that is otherwise divided 4–4. If Obama nominates someone whose legal positions support Obama's agenda, that nominee would have the potential to influence court decisions for a generation.

While their potential for long–term influence on court decisions is always acknowledged, Supreme Court vacancies generally are not seen as being overall game changers, but this one could be.

Scalia often observed that he was not a politician. He was a jurist. But it is important to remember that this is a presidential election year, and everything that the lame–duck president does will be perceived politically.

If he chooses to send a liberal nominee to Capitol Hill, it could set off a national political discussion on all sorts of issues as Obama's nominee speaks to the senators who will vote on the nomination. Remember: The majority party in the Senate is Republican, and the Republican Senate is not likely to act on a Democratic lame–duck president's Supreme Court nomination prior to an election.

Obama could nominate a more moderate justice than he might prefer, simply to avoid an embarrassing setback, but that is a risky proposal. A more centrist judge might well take positions in some cases that are contrary to Obama's.

But a more extreme nominee almost certainly would have no chance of being approved by a Republican Senate.

Obama could issue a recess appointment when the Senate is not in session, in which case the Constitution calls for such an appointment to be approved by the Senate before the end of the legislative session. If it isn't approved, it becomes vacant again.

Under the present circumstances, the Senate is likely to remain in session as long as possible, but congressional terms end early in January, and Congress will not be in session until the presidential inauguration.

Obama would have roughly 2½ weeks to make a recess appointment before his successor is sworn in. A recess appointment probably would prove to be a temporary solution, but that would depend on other things that are likely to be discussed in the next 8½ months. Whether Obama announces his nominee before or after the election could become a big issue when voters go to the polls — along with the positions such a nominee is likely to take on cases involving the most pressing issues of our time.

That, I suppose, will depend on how many Americans recognize the impact that Scalia's successor can have on their lives. It will be interesting to see just how many that is — and to hear the discussion it sparks.

That could be the real game changer.


This post first appeared on Freedom Writing, please read the originial post: here

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