As a savvy news imbiber, you are well aware that much of what politicians say to you is spin, deception, laughers and howlers, a steaming pile of bull, a great big baloney sandwich no thinking person could actually swallow. And yet they continue to send that spin your way, never more so than when an unexpected controversy comes up. Each party mobilizes quickly to devise, distribute, and repeat their core arguments, the talking points that they hope will persuade the public and make their preferred outcome more likely.
So it is with the fight over who should replace Antonin Scalia on the Supreme Court. Republicans were put in an awkward position by Scalia's death, because their immediate reaction (after "Noooooooo!") was that Barack Obama should not be allowed to appoint Scalia's successor. After all, this would cause a dramatic swing in the court's ideological balance, from 5-4 in favor of conservatives to 5-4 in favor of liberals. The consequences would be substantial and long-lasting. It simply cannot stand.
The trouble is that Barack Obama happens to still be president of the United States, much as Republicans wish it were otherwise. So they arrived at a plan: We just won't confirm anyone Obama nominates. In fact, we won't even give the person a hearing, let alone a vote. This is within their power. But they also need to justify that decision. The good news is that they have plenty of practice shoveling crap when it comes to issues of the judiciary, and we're hearing many of those old arguments as well. That's why I thought it would be a good idea to go through them, and note what they actually mean.
"There's a long tradition of not appointing a Supreme Court justice in an election year." There isn't actually such a tradition; it just happens that in recent decades justices haven't died or retired in election years. What this actually means is, "We can taste getting the White House back, so there's no way in hell we're going to let that usurper in the Oval Office get another Supreme Court seat."
"We should let the American people decide." This is a truly novel one, since no one is using it to argue that, say, nobody who's up for reelection this year should vote on any legislation. If you're still a senator, you can still vote. And of course, the American people did decide, when they elected Barack Obama to what everyone understood would be a four-year term, not a three-year term. So the actual meaning of this argument is, "We didn't like what the American people decided in 2012, so we should give them a chance to try again, in the hopes that they'll decide in our favor."
"We need a justice who'll show restraint and won't legislate from the bench." "Legislating from the bench" actually means "Issuing rulings we disagree with." Conservatives, like liberals, are more than happy to have the Supreme Court legislate from the bench when this results in outcomes they prefer. For instance, Republicans tried multiple times to get the court to strike down the Affordable Care Act, which had been passed by Congress and signed by the president. They were trying to convince the court to be more activist, and were happy when it did so in cases that did things like invalidate parts of the Voting Rights Act or allow more money in politics than Congress wanted.
"Justice Scalia was an originalist who believed the Constitution is sacrosanct and what matters is the intent of the Framers." Scalia portrayed himself this way, yes, but the truth is that, like other justices, Scalia was an originalist when it suited him and wasn't when it didn't. Like any scripture, the Constitution is vague enough that you can find whatever you want in it, and in most cases, the deepest desires of James Madison are not only impossible to determine but utterly irrelevant. For instance, the Constitution forbids unreasonable search and seizure. Does that mean the police can look through the contents of your smartphone during an arrest? What would Madison say? Well, Madison would say nothing, because he died in 1836, when smartphones were rather rare. In that case, as in nearly every other one, even justices who call themselves originalists will decide which outcome they want, then find a justification for it.
"If Obama were to nominate a judge who upheld these principles like judicial restraint and originalism, we would be happy to confirm him or her." What this actually means is, "If Obama were to nominate a conservative Republican, we would be happy to confirm him or her." Some Republicans have actually suggested Orrin Hatch, an extremely conservative senator, as a "consensus" pick they might support.
"Obama should nominate a mainstream judge, and then we might go along." This word "mainstream" has been used by some, including Orrin Hatch himself. Hatch said that while it would be "wonderful" if Obama and congressional Republicans could come together to get this resolved, there's "no reason to believe that President Obama will nominate a mainstream replacement." In this context, "mainstream" means "conservative Republican;" anyone else is not "mainstream."
"We need to maintain balance on the court by nominating someone in Scalia's mold." What this actually means is, "We like the court as it was, with conservatives having a majority. If liberals had a majority, that would be bad." If conservatives could have all nine seats, do you think they'd think that was a bad thing because there wasn't enough "balance"?
You might say that if the situation were reversed and liberals were faced with the loss of a majority on the Supreme Court, they'd be saying all the same things. And they might, although they've never been able to quite match the shamelessness with which conservatives say things they don't believe, like, "These restrictions on abortion clinics are only about keeping women safe" or "This voter ID law has nothing to do with making it harder for people who aren't Republicans to vote."
But wouldn't it be something if everyone on both sides just decided to be honest? If everyone just admitted that this isn't about fairness, or judicial philosophy, or the people's voice. It's about getting what you want.
The Democrats want a Supreme Court that will give them the decisions they want, and the Republicans want the same thing. They'll do whatever they can to get it, up to the point that their tactics cost them too much politically. This will end when one side has the power to get what it wants, and the other side no longer has the power to stop them. And this is true no matter what kind of silly arguments anyone throws at you.