Pascal’s Wager: the argument that it is in one’s own best interest to behave as if God exists, since the possibility of eternal punishment in hell outweighs any advantage of believing otherwise.
I was reminded of Pascal’s Wager while listening to a talking head going on about the GOP’s refusal to follow the Constitution with regards to allowing any Obama nominee from even getting a confirmation hearing. The GOP is, I think, not being very strategic in its handling of this, and any misstep with appointing a new Supreme Court Justice is one that you’re stuck with for a generation.
The next President may get the chance to replace as many as 3 – even 4 justices, depending on how the health goes of the oldest members. Ruth Bader-Ginsburg at the very least, has to be ready to retire, I’m sure. She turns 83 next month. Kennedy turns 80 this year. Breyer turns 78. If those three leave the court during the next Presidential cycle, that makes for FOUR justices including replacing Scalia, split 50-50 between those appointed by a Republican (Reagan) and by a Democrat (Clinton).
The GOP is proceeding as if they’re going to win the White House. This is not a safe assumption at all.
Scalia was appointed by Reagan, and was among the most socially conservative justices in the modern era, and arguably the most influential. If the GOP is able to push off his replacement to the next President, and they _fail_ to take the White House, they lose the chance to get even a moderate in there, and that swings the conservative-liberal balance of the court in the favor of the liberals (well, sorta liberal; I’ve got a real problem with Sotomayor).
However, if they choose my Pascal’s “Supreme” Wager, they get an excellent chance of getting a moderate Republican on the bench, because Obama has an unfortunate record of capitulating to Republicans by giving them as much as he’s willing to on his opening bid in any negotiation he has with them. They could easily get a moderate Republican like Sandoval in there now, while they have the chance, and then the chance to replace as many as two additional justices – liberal justices (Ginsberg and Breyer) in the next cycle.
Their worst-case scenario, however, is looking all-too plausible. Let’s assume Trump gets the nomination (extremely likely, unless someone else is chosen in a brokered convention). GOP party leaders have openly said they expect the GOP to be ‘broken’ as a party if Trump wins the nomination, as down-ballot races will suffer greatly, and you can expect an excellent chance of losing the Senate to the Democrats if that happens (which may happen anyway, but the chances go way up in this scenario).
Now let’s further assume that Trump loses the election (entirely plausible depending on Democratic voter turnout, which may be incentive by a Trump candidacy). Now the next President is still a Democrat, and has a Democratic Senate to pass any nominee they want. And in that scenario, there is nothing to stop that Democratic President from nominating – and getting – any ultra liberal they want. If they get the chance at all four possible new justices, the court swings from 5 conservative, 4 liberal-ish, to a possible 3 conservative, 6 liberal makeup, and it would be entirely likely to remain that way for decades hence. Scalia served for over 29 years, and Kennedy has already served 28. In the history of the court, Scalia was only the 15th longest-service justice. Saying a justice can serve for a generation is not an exaggeration.
Now let’s get really vicious, and say that Sanders wins the White House. Do you think he’s going to appoint anything less than uber-ultra-left liberals to the court, both socially and otherwise? You may consider Sotomayor a liberal, but when it comes to issues involving corporations, she’s had a disturbing history of siding with corporations. Sanders would certainly have none of that.
Ultimate Scenario Time(tm): Sanders chooses Elizabeth Warren as his VP, and he serves one or two terms, and Warren then wins the next round. Now we’ve got a chance for ever more liberal justices.
Thomas turns 68 this year, and Alito turns 66. If we have even 2 or 3 Democratic terms, the odds are very good that one or both of those will be leaving the court by the end of that time, thus altering the court makeup for a ridiculously long time, indeed. Two of the three _youngest_ justices – Sotomayor and Kagan – were appointed by Obama.
The GOP should take the chance they have right now of getting someone who at least identifies on the surface as a conservative, while they have a guaranteed chance of doing so. It may be the last they get for an incredibly long time.