Tuesday, February 16, 2016

The Scalia Squeeze

Scalia's death was the kind of Black Swan event that can really disrupt a system. Now, the specifics of 'Black Swans' are interesting--they're not just random/un-prepared for. They have to be something you could see coming. In the case of a nearly 80 year old man in poor health who smokes cigars, you know? You kinda could.

The Omnivore points this out to highlight the fact that in the last election we were told it was "all about the SCOTUS judges." Well, it was. It still is. Now we just can't pretend RBG will live forever.

The Squeeze Plays

As the death of Scalia has the effect not of changing the topology of the race in any material way--but instead of increasing the pressure of it, the question is "who gets to choose how the squeeze goes?" The answer is: Obama. Not just because he has the initiative in terms of providing a replacement nomination--but because Mitch McConnell gave up all his remaining room to maneuver as he was forced into the position of promising to block any candidate, sight-unseen, no matter what.

So now we get to see how this plays out based on Obama's next move(s). What are they?

1. Squeeze Zero: Recess Appointment

The most radical move Obama could make is this: Declare that the promise to block any candidate leaves him no choice but to make a recess appointment (he has until the 22nd, after which Congress will never go on recess again--ever). This appointment could be anyone--he lasts until the end of the next congressional session after which he is voted out and immolated.

This would piss everyone off, not gain a whole heck of a lot (a set of decisions, probably--but not that many) and would likely galvanize the GOP base. In this case the squeeze is on GOP leadership to do something--it tries to create an unforced error caused by their enraged response.

Likelihood: Low. Obama's troll-game is good--but the short-term gains here are not his style.

2. Squeeze Play One: A Minority Candidate

There are several potential candidates on deck that are minority choices. Asian, Hispanic, etc. If Obama chooses one of them, the GOP has to stand against a minority voice on the court and risk further alienating a group that, presumably, they're going to need some of in November anyway. In this scenario, Obama uses the choice to drive a wedge (the squeeze) between the GOP and minority votes.

Likelihood: Medium. While this is possible (there are some very good candidates) the Democrats are likely to already be picking up this vote (minorities who care about slights like the Supreme Court justices--as opposed to potential minority voters who are unlikely to turn out because of this). In other words, it doesn't seem like a big gain (although it might play better with the Dem Base).

3. Squeeze Play Two: A Compromise Candidate

This move involves nominating one of the potential "compromise candidates." An older moderate who enjoyed bi-partisan support previously. In this case the squeeze is The Base against Moderates. The idea is to present GOP moderates with a loss-minimization strategy that further divides the party. They see that if the 2016 election doesn't go their way they need to get a "reasonable" candidate now rather than a 30 year old super-liberal in a Hillary administration.

In other words, they have to wager the chance they'll win in November against the downside. For The Base this isn't a problem at all (they assume they'll win in November as Hillary will be incarcerated)--but for Moderates, it looks bad.

It also looks like just more GOP obstructionism to the rest of everyone else.

Likelihood: High. Playing the grown-up is where he wants his legacy to land. He also probably thinks that this has the least downside for him/the Democrats. This seems like his sweet-spot.

4. Ted Cruz / Barack Himself

Suppose Obama nominated Ted Cruz or himself? In this case the Squeeze is simply to sew complete chaos and hope for a collapse. Picking Ted and thus, getting him out of the race, would pretty much force the GOP to confirm him--they could do no better than Cruz--but would leave Trump the likely victor. 

Obama picking himself--and offering to step down, leaving Joe Biden in charge--would present a potentially tasty scenario to some elements of The Base as well.

Likelihood: Non-Existent. While it would be FULL OF LULZ, it seems highly unlikely that Obama would do any such thing.

Where Do We Go From Here?

The thing we need to keep in mind here is that Scalia's death really high-lights the fact that the GOP has come to rely on the court in order to move its agenda. Rubio is putting together a group of experts to figure out how to unwind the Gay Marriage ruling. More and more, the GOP is counting on judicial challenge to take the place of having to win a national election. In the event of a 5-4 liberal majority, it'll be game over for that strategy. 

This chart shows that the liberal core of the group votes en bloc 90+% of the time--that's a terrifying number for conservatives and should be a scary number for liberals.

An Aside: The Pillow

Scalia was found with a pillow over his head. This has led everyone ('everyone') to conclude he was murdered by an assassin who for some reason left the pillow rather than simply removing it. If so, (a) Obama-assassins are getting sloppier and (b) the Glenm Beck slice of the party is going to be completely nuts (not that they weren't already).

The conspiratorial nature of The Base may well drive some extra-crazy behavior. We'll see. But remember: this strain of thought has been well encouraged by the GOP Entertainment Wing and should not be surprising.


  1. Another scenario to consider that I saw somewhere yesterday: what if R's win the Presidency but D's take back control of the Senate. This would give Obama a window between Jan 3 (new Senate starts biz) and Jan 20 (inauguration) to put a Justice into office (assuming the new Senate goes nuclear on SC nominees, which they almost certainly would in this case). In this scenario we would almost certainly see the 30yr-old ultra liberal.

    1. I think in the scenario where the R's win the White House but the D's win the Senate, everyone also gets a unicorn pony.


  2. If the confirmation will take over a year it's not out of the question we see a double-down black swan event what with RBG and others very old. Don't think this would change calculus much bit would certainly amplify/harden positions.