Scalia’s effect on the TPP

Of all that’s been written about the ramifications of the unexpected death of Supreme Court Justice Antonin Scalia – from its effect on upcoming cases before the court to Senate races in November and even to the presidential race, to which Ted Cruz ’92 is now referring to as a “referendum on the Court” – comparatively little has been said about its effect on other legislative issues that would have otherwise dominated this year. On the domestic side, the President’s final year was supposed to be spent on criminal justice reform, which just a few months ago seemed like a real bipartisan possibility, and lobbying for congressional approval of the Trans-Pacific Partnership, a massive free-trade deal that covers 40 percent of the world’s GDP that the administration signed last year. Instead, the year will now be consumed with what The New York Times is already calling a “battle royale” for the soul of the court for a generation. As Scalia was a reliably conservative vote, if President Obama is able to successfully fill his seat with a liberal, the Court’s balance would shift 5-4 in favor of Democratic appointees, reversing its decades-old conservative majority.

To most Americans, the Supreme Court’s role is mostly seen as one of importance to domestic affairs. Almost all of the ‘textbook’ Supreme Court cases – Dred Scott, Plessy v. Ferguson, Roe v. Wade, et cetera – deal with issues of domestic policy and constitutional rights in the United States. Rarely do people outside of the legal realm think of the Court as having much to do with foreign policy and, in truth, the Court is less frequently involved in foreign policy than Congress or the presidency. However, even if the Court never would have been involved in the TPP with Justice Scalia alive, in his death he just might be the one to kill the deal.

Obama has called the TPP the top remaining item on his foreign policy agenda and the “most progressive trade deal in history” at a recent press conference; in his year-end press conference last year, he expressed cautious optimism that the United States would ratify it during his presidency, in no small part due to support from Senate Republicans. When the President barely won Trade Promotion Authority last summer (under which Congress agreed to vote on a trade deal up-or-down, without offering amendments or changes), he did so thanks almost entirely to a Republican caucus that remains pro-free trade. Democratic support has evaporated due to a dislike of the North American Free Trade Agreement and other trade deals seen as having killed union manufacturing jobs in America. As a result, any strategy for winning congressional approval of the deal itself will have to rely on a similarly Republican-heavy vote-count.

This seemed reasonable to expect just a few months ago, even though it would still be an election year: Republicans not only agreed with the President on trade, but they also would have leapt at the opportunity to create a wedge between the President and the Democratic party going into November. Republicans had further incentive to approve the deal with Obama in office, since Clinton and Sanders have come out against it, and the GOP presidential candidates, while in favor of free trade, have not campaigned about it and must still play to the overwhelmingly populist sentiment dominating this election cycle.

Now, however, the entire year will be spent on the nomination fight, period. The battle to fill Scalia’s seat, which Obama has vowed to do despite the Mitch McConnell’s, Senate Majority Leader, promise not to even consider whoever he ends up nominating, will be so intense, brutal and prolonged that it will deplete all the oxygen in the legislative atmosphere for the rest of this year. This fight will be historic and unprecedented in modern history – Elizabeth Warren has even predicted that the ensuing obstructionism over the nomination will be a “threat to our democracy itself.” It is hard to see how there will be any remaining appetite among congressional Republicans to work with the President on anything at all for the rest of his term.

Additionally, the people Obama was specifically relying on to pass TPP – the Republican caucus – are now the most inclined to work against him on his entire agenda, in order to remain united in stonewalling his predicted appointment. It therefore seems that in one final act of defiance towards a Democratic president whose agenda he voted against at every turn, Justice Scalia in death will deal a fatal blow to the President’s last major opportunity for a legacy-making achievement.

Ryan Dukeman is a Wilson School Major from Westwood, Mass. He can be reached at rdukeman@princeton.edu.