Federal Courts and Nominations

Quick Politicization of Scalia’s Death Caught Progressives Totally Off Guard

By Lauren Fox

The lag time was vanishingly short.

In a statement from the Supreme Court posted to the New York Times website at 5:56 p.m. ET Saturday evening, Chief Justice John Roberts confirmed what the world by then had gathered from news reports. The conservative firebrand and progressive nemesis Antonin Scalia was dead.

Less than an hour later, at 6:26 p.m. ET, Senate Majority Leader Mitch McConnell stunned the political world with a statement declaring President Obama should not fulfill his constitutional duty and appoint a replacement to the highest court in the land.

“The American people‎ should have a voice in the selection of their next Supreme Court Justice, “McConnell said in a statement. “Therefore, this vacancy should not be filled until we have a new President.”

McConnell’s statement had been preceded a short time earlier by similar sentiment from the Republican presidential contender, Sen. Ted Cruz (R-TX), who had commented on Twitter that “Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.”

Even as Washington has grown increasingly polarized, the progressive legal community was still caught off guard by the fast, brash McConnell statement. McConnell, who combines a certain Kentucky courtliness with razor-sharp political elbows, might have set a new record in Washington for eschewing the decorum of official mourning and diving straight into posthumous political wrangling. Thanks to McConnell, celebrating Scalia’s life and legal accomplishments was immediately eclipsed by talk of who should get the right to appoint his successor.

“It seems to me to be a huge political mistake,” said one Democratic aide who spoke to TPM on the condition of anonymity in order to shed light on Democratic strategic thinking in the wake of Scalia’s death. “We knew that we were going to have to counter a narrative that this president does not get another justice. … We were shocked at how quickly we had to start countering that narrative.”

Democrats in the Senate have long decried Republican obstructionism on judicial appointments in the Senate, but the aide said Democrats were still flabbergasted that McConnell was taking a stand against an unknown, unnamed presidential appointment to the Supreme Court on a Saturday night, before a week in which the Senate was not even scheduled to be working in Washington.

“Even if their ultimate end game was to deny Obama a judge,” the aide said, “you usually have a reason even if it is a made up one.”

McConnell’s office, however, defended the timing.

“‘I seem to recall dem statements coming out pretty fast,” a spokesman for McConnell said. “And you could probably write a whole piece on the ghoulishness of the press corps—from the minute the news broke, the only question I got was about the vacancy.”

Beyond Capitol Hill, the amalgam of advocacy and special interest groups that comprise what might be generously called the progressive legal infrastructure were even more surprised by how rapidly Scalia’s death had been politicized.

Jeremy Leaming, the vice president of communications for the progressive American Constitution Society for Law and Policy, directed staff once news of Scalia’s death became public, to veer away from public speculation on a successor and instead give the legal world time to reflect on the loss of Scalia, the man and influential legal mind.

“My comment right away was that we really should have nothing to say right now,” Leaming said. “There ought to be people who comment and comment on Justice Scalia’s legacy, and we felt that groups like the Federalist Society and the Heritage Foundation were the appropriate groups to make those statements. Then it was not too long after that…I saw McConnell’s statement.”

Leaming said the statement changed the game. Suddenly, messaging that was expected not to be deployed for days if not a week or more was fair game.

“It has gotten so nasty in so many ways,” Leaming said. “I certainly thought there would be at least a week.”

The McConnell statement had added an uncomfortable dimension to an already politically fraught public mourning. In his remarks on Scalia, President Obama was forced to comment about a possible succession for the court.

“I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” Obama said at the presser. “These are responsibilities that I take seriously, as should everyone…They are bigger than any one party. They are about our democracy, and they’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our founders envisioned.”

Doug Pennington, the press secretary at the liberal Constitutional Accountability Center, said what surprised him the most was not that McConnell– a shrewd political tactician–would throw a wrench into the nominating process, but that he would act so early, instead of going through the motions of a hearing and nominations process.

“He could arrive at the same outcome that he drew the red line on this weekend by simply going through the process and getting to Sen. Cruz’s promised filibuster,” Pennington said. “The first words out of McConnell’s mouth are ‘we are not letting anyone else in.’ It was not particularly politic.”

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