Antonin Scalia died on Saturday, and to the extent that the death of a 79-year-old man can be unexpected, it was. Immediately, Republican politicians and conservative pundits began to argue that it would be undemocratic — seriously — for an outgoing president to fill a Supreme Court vacancy in an election year, and that therefore Scalia’s seat should remain open until the next president is elected.
This is a pretty stupid argument, obviously.
It’s a pure power play to make it possible for a hypothetical future Republican president to choose Scalia’s replacement, and it’s incredibly unlikely that they would be claiming the same thing were the current president Republican and the Senate Democratic, rather than the reverse. It’s important to understand that they are not making this argument in good faith. But also understand that trying to clothe naked partisanship in the noble garb of principle is a staple of politics everywhere. (Democrats, for their part, are pretending to be scandalized by this craven maneuvering, offensive to the Purity Of The Republic, The Intentions Of The Founding Fathers, The State Of The Discourse, etc.)
Also unsurprising: speculation about how Scalia’s death might change the 2016 presidential race by transforming it into a fight over who will choose the next Supreme Court justice. Will the Republican establishment get more serious about uniting around a candidate in order to stop Donald Trump? Will Democrats become less willing to take a chance on losing the election by nominating Bernie Sanders?
These are reasonable questions to ask, but the fact that we’re wondering how the prospect of having to choose a Supreme Court justice might change the way people are thinking about this election reveals the nearsightedness of our politics.
Nothing should have changed, because the 2016 election, even before Scalia’s death, was always going to determine who was going to nominate a replacement for a Supreme Court justice. All elections do: Nearly every president has had a member of the nation’s highest court retire or die on his watch; only Jimmy Carter has ever served a whole term without having to replace one. But if voters are sobered into taking this election more seriously anyway, that’s good. In general, we tend to assign presidents too much blame for the bad that happens during their administrations, and too much individual credit for the good. Lots of things that affect the way we judge their legacies are entirely out of their control.
But Supreme Court nominations are different. While the politics of the day shape the pool of potential candidates, even within that small group, there’s a choice to be made with far-reaching consequences. The results of this election matter, no matter how awful and aggravating the process becomes, and we have to carefully consider the way we vote in both the primaries and in the general election. Because whoever the next Supreme Court justice is, he or she will have a hand in shaping the lives of millions of Americans for decades to come. That justice’s power to alter the course of our nation will long outlive the next presidential administration. It’s the longest of long games in American politics, and that’s true for every presidential election, not just this one.
It’s not a matter of choosing a judge that’s on the right side of today’s political debates for that president’s party. It’s not even just about a judge’s philosophy, or whether they view the Constitution as flexible and adaptable or rigid and fixed. Choosing a Supreme Court justice is about these things, but also about more subjective considerations: What kind of person are they now, and what kind of person are they likely to become? It’s like being tasked with selecting a spouse for your child — except your kid is the entire country, and there’s no such thing as divorce.
In 1986, when Chief Justice Warren Burger retired, Ronald Reagan chose to nominate Justice William Rehnquist to replace him as chief, leaving a vacant Associate Justice chair to fill. The Oprah Winfrey Show had just premiered, only the government and universities used the Internet, and America’s primary strategic foe was the Soviet Union. It was impossible at the time for Reagan to envision the precise ways in which times would change, or the kinds of cases his eventual nominee, Antonin Scalia, would preside over. It would have been difficult just to anticipate the ways in which Scalia’s thinking would or wouldn’t evolve, how his personality would affect the tenor of the court, or how he would apply his principles to questions of the law in that unknown future.
There’s no end to the list of considerations that have to be accounted for in decisions like these, and the longer a track record a nominee has, the harder it is for them to get through an increasingly partisan confirmation process: The more a President knows that they like a particular candidate, the more the opposition likely knows that it won’t. All anyone can do is make educated guesses. And even when you think you know where they’re likely to come down on a given issue, justices can surprise you: It’s hard to imagine, for instance, that George W. Bush thought his nominee John Roberts would end up being the kind of Chief Justice who would bend over backwards to rescue a Democratic president’s highly controversial signature accomplishment.
Now, this doesn’t necessarily mean that we should never cast our votes for long-shot candidates in presidential primaries, make protest votes to signal our displeasure, or even abstain from voting entirely. And this certainly isn’t a clarion call to line up behind an establishment candidate in order to give your chosen party the best chance of stacking the Supreme Court in its favor. But each of us should consider our options carefully, because even in times when the executive branch contends with a deadlocked legislature and presidents don’t have much other influence, whomever they choose to nominate for our nation’s highest court will have effects that are far-reaching, long-lasting, and hard to anticipate. Whichever candidate you’re considering voting for (or voting against) this year, remember that.