EDITORIAL: Liberal lockstep on Court will sink Obama’s nominee

The Wall Street Journal


With the death of Antonin Scalia, Democrats and the media are graciously offering Republicans an ultimatum: Give them control of the Supreme Court now, or they’ll use the vacancy as a political club to hold the White House and retake the Senate. False choices don’t get more false than that.

The reality is that no one President Obama is likely to nominate for the Court this year has a chance to be confirmed in a GOP Senate. Republicans could vote for José Cabranes of the Second Circuit Court of Appeals, but he’s 75 years old and too independent-minded for Democrats. Conservatives would revolt if Republican Senators voted to confirm any other Obama appointee.

And well they should. The stakes are simply too great with the high court now split 4-4 on so many legal issues. The most important aren’t even the social issues like abortion and gay marriage that preoccupy the media. Roe v. Wade isn’t going to be overturned by replacing Justice Scalia, so the disputes would be over laws that regulate abortion in late term or to protect the health of the mother. Same-sex marriage won’t be overturned either.

The more consequential cases are over the Bill of Rights and the separation of powers that President Obama has so abused to serve his political goals. Take the First and Second Amendments. The Friedrichs case on coerced union dues that the Court is scheduled to rule on this year is probably now a 4-4 tie.

That would let stand the mistaken Ninth Circuit ruling that denies workers their right not to support political causes they oppose. The Little Sisters of the Poor are also now likely to lose their religious-liberty challenge to ObamaCare’s coerced subsidies for abortion.

A new 5-4 liberal majority would also take aim at the conservative precedents of recent years. These include the 5-4 rulings upholding individual gun rights in D.C. v. Heller and McDonald v. Chicago. Justice Ruth Bader Ginsburg, who read her Heller dissent from the bench, gave a speech saying she expected that a future Court would overturn Heller.

Also in peril would be Citizens United and other rulings that struck down limits on financing political campaigns. The lawyer for the Obama Administration said during oral argument for Citizens United that even books could be banned as an independent campaign expenditure. Mr. Obama and Hillary Clinton say they want to rewrite the First Amendment to limit campaign donations, and it would take a brave liberal to buck that pressure.

Justice Scalia’s death also means the Court lacks the votes to correct Mr. Obama’s illegal expansions of executive power. These include the House challenge to his rewriting of ObamaCare and the Texas case against his unilateral legalization of four million illegal immigrants.

If the Court ties 4-4 on immigration, as it probably will, the Fifth Circuit’s stay on Mr. Obama’s order will continue until the courts rule on the merits. But a 5-4 liberal majority is all but certain to uphold anything a Democratic President does on so political a subject.

We know this because this is how all Democratic Justices have voted for more than a generation. Not since Byron White retired has any Democratic appointee broken with the liberal lockstep on issues that truly matter to the left. Justice Stephen Breyer provided a rare sixth vote after the Sixth Circuit said the people of Michigan couldn’t ban racial preferences (Schuette, 2014), but the liberals had already lost that case.

Otherwise the four current liberals are a solid bloc that never breaks. Among Mr. Obama’s appointees, Elena Kagan is a more nuanced thinker than Sonia Sotomayor, but on big cases they vote the same.

By contrast, Republican appointees Harry Blackmun, John Paul Stevens, David Souter, Sandra Day O’Connor, Anthony Kennedy and John Roberts all broke with conservative political preferences on major legal issues. For that matter so did Justice Scalia, albeit for more principled legal reasons.

The larger point is that progressives have made the Court so political that it’s understandable that Republicans want to let the next President fill Justice Scalia’s vacancy. A GOP Senator who voted to confirm an Obama nominee would demoralize his own supporters. Meanwhile, the outrage among Democrats over being denied a vote is entirely synthetic as they use the issue to mobilize their own partisans. (See Chuck Schumer nearby.)

Majority Leader Mitch McConnell and Judiciary Chairman Chuck Grassley are right to say that the Senate should refuse to consider any nominee this year. An election-year hearing and vote would only politicize the Court more and be unfair to the nominee.

So ignore any complaints you read about “unprecedented” GOP “obstruction.” As Justice Scalia warned (our Sunday editorial on his legacy can be found on wsj.com), legal progressives made the Court a partisan cause by making value judgments that are best left for voters to decide. One result is that Democrats will have to fight and win an election in 2016 to replace the greatest contemporary Justice.

02/24/2016 - 1:40pm