Republicans have a winning message on the replacement of Supreme Court Justice Antonin Scalia, and all the candidates need to get on board.
It’s a two part message. Let the people decide in November, because President Obama’s (or Hillary’s) appointee would radicalize the country.
The Senate is exercising its constitutional duty to withhold consent by holding no hearings or votes, so that it can preserve the people’s right to vote on the court’s direction this November.
And what they are voting on is a specific set of issues: a court that would impose partial-birth abortion, delete the Second Amendment, and rubber stamp Democratic presidents’ executive orders if Justice Scalia is replaced by a liberal.
Democrats think they can make this a winning message for them by highlighting Republican obstructionism. They are right — if Republicans stray from their message.
But if Republicans go on offense, it is a loser for Democrats in the fall. The Senate is doing what the people elected them to do in 2014 — put a check on President Obama’s radical executive excesses and protect the people’s right to decide on any transformative changes. It’s no longer hypothetical what those changes are: because Scalia could represent the Court’s swing vote, we might as well write on the November ballot alongside the Democrats’ names, partial-birth abortion, gun confiscation, and lawless Democratic executive orders thwarting the people’s representatives.
Senate Republicans, presidential candidates, and grassroots activists all need to be on the same page with these themes.
Senators Ted Cruz and Marco Rubio each hit one of the themes in the 24 hours after Justice Scalia’s passing. They should work to perfect both themes together.
At the debate, Rubio emphasized the magnitude of the situation and the inappropriateness of President Obama imposing his agenda: “it has been over 80 years since a lame duck president has appointed a Supreme Court justice.” He elaborated to CNN’s Dana Bash: “We’re going to have an election this year. And in the election people are going to get to choose a candidate for president. And part of that vote will what kind of nominee do you want, because we’re going to be asked now, what kind person or what kind of justice would you put on the Supreme Court. So let’s let the voters weigh in in November.”
But Rubio needs to better incorporate not just that the Senate is letting the voters decide, but what specific choice the voters will have — what exactly is at stake. Ted Cruz emphasized this very well over the weekend:
We are one justice away from a Supreme Court that will strike down every restriction on abortion adopted by the states. We are one justice away from a Supreme Court that will reverse the Heller decision, one of Justice Scalia’s seminal decisions that upheld the Second Amendment right to keep and to bear arms. We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans.
Cruz elaborated on “Meet the Press”: “If liberals are so confident that the American people want unlimited abortion on demand, want religious liberty torn down, want the Second Amendment taken away, want veterans’ memorials torn down, want the crosses and stars of David sandblasted off of the tombstones of our fallen veterans, then go and make the case to the People. I don’t think the American people want that.”
Jeb Bush, unfortunately, had a wobbly response. His debate answer was indirect, and when Dana Bash asked him the next morning if the Senate should hold a vote, Gov. Bush said, “It’s up to Mitch McConnell, it’s not important to me.” Wrong answer. It is extremely important. Hearings and votes suggest the Senate is open to confirming a nominee. The Senate is not and should not be. It is withholding its consent unequivocally until after the election so that the people can decide.
The press will continually suggest that the Senate is failing its constitutional duty by not proceeding on a nominee: “Doesn’t the United States Senate have an obligation to at least go through the process and have an up or down vote?” Cruz gave Chuck Todd the right answer: “Not even remotely.” Every Republican candidate must insist the Senate is exercising its responsibility by withholding consent so the people can decide the radical changes at stake if Obama, Clinton or Sanders flip Scalia’s vote.
Governor Kasich was also off message. At the debate he responded with his standard attempt to triangulate how he rises above the divisiveness of both Republicans and Democrats, and suggested he would be open to some nominees: “If you were to nominate somebody, let’s have him pick somebody that’s going to have unanimous approval, and such wide spread approval across the country that this could happen without a lot of recrimination.” That’s the approach that led President George H.W. Bush to give us Justice David Souter.
Donald Trump’s answer was slightly better than Kasich’s, but only for being less discernible and relevant. He mentioned good potential nominees by name for a Republican president, Judges Diane Sykes and Bill Pryor. But he seemed out of his depth on defending the Senate’s actions (just “do something about it”), and he didn’t name the specific issues in the balance.
Later in the debate, Cruz hit Trump as being as bad on nominees as Hillary would be, and he told Chuck Todd the next morning, “The consequences, if either Hillary, or Bernie, or Donald Trump is the president, we will see the Second Amendment written out of the constitution.”
Republicans need to go on offense and put partial-birth abortion, gun confiscation, and lawless Democratic executive orders on the November 2016 ballot. And to show they aren’t improperly politicizing the court, they need to explain that they are performing the constitutional duty the people gave them in 2014, by withholding Senate consent so the voters could decide these issues for themselves at the ballot box.
That is a winning strategy, if all Republicans get on board. Now.
Matt Bowman is an attorney who practices pro-life and constitutional law in Washington, D.C.