“Mein Führer, I congratulate you! Roosevelt is dead!”
So (reportedly) exclaimed a member of his staff to Adolph Hitler upon hearing of the American president’s death from a massive stroke on April 12, 1945. Members of the Reich’s inner circle – possibly including Hitler himself – evidently believed that FDR’s death was the fervently hoped-for “miracle” that would finally turn things around for the Fatherland by causing the Allies’ military alliance (i.e., England, America and the Soviet Union) to collapse. Nazi true believers believed that the Allied coalition was being held together by the forceful personality of their arch-enemy, Franklin Roosevelt.
Of course, the hope that FDR’s death would save Germany from defeat was a delusion. It had no basis in fact. Historians have shown that, from the very start of his career, the Führer had fundamentally miscalculated the vast strength of both Britain and America, believing their people to be weak-willed pleasure-seekers who lacked the stomach for a serious war. He expected the British people to fold when he terror-bombed their cities and sank hundreds of merchant ships carrying foodstuffs and war materiel they desperately needed. Instead, their resolve stiffened and their anger grew.
Hitler had long scoffed at Americans eating ice cream instead of drinking beer, as the manly Germans did. He imagined that Roosevelt was holding America together with the political equivalent of string and baling wire, and he evidently thought the country (and its war-effort) would collapse without Mr. Roosevelt’s strong leadership. Der Führer simply had no idea what Americans were really made of or what they were capable of in time of national emergency.
Hitler’s “misunderestimation” (as George W. Bush liked to say) of the Soviet Union was just as profound – perhaps even more so. “We have only to kick in the door, and the whole rotten structure will come crashing down,” he famously said. He believed the Russians could never stand up to the Wehrmacht. For a time he seemed to be right, but the indomitable Russian people eventually proved him wrong.
In 2007 I had the privilege of speaking personally with four Russian veterans of the Battle of Stalingrad. One was a woman, aged 80, who had been a girl of only 16 during the grim house-to-house fighting that trapped and ultimately defeated the German 6th Army. She acted as a runner who carried messages between elements of the Soviet forces during the siege. In our conversation she said, “We were all young. We thought it was just a great adventure. That we might die never occurred to us.” Many of her comrades did fall, of course, but they never gave up, as Der Führer painfully found out.
I relate all this as background to a drama now playing out in the Democratic Party, following the death of Supreme Court Justice Antonin Scalia. A Reagan-appointee who dominated the High Court for thirty years, the arch-conservative justice has long been a thorn in liberals’ side – repeatedly issuing opinions that closely followed the Constitution’s “original” construct of a limited government working under strictly constrained powers. The chance to replace such a jurist with a “moderate” or even a liberal justice is a beyond-the-rainbow dream for a Democratic president on his way out. With Justice Scalia not yet in his grave, liberals can barely restrain their joy over this rare opportunity to tip the ideological “balance” of the Court for a generation.
Things might not play out as Democrats hope, however, as the historical example of Justice Abe Fortas demonstrates. When Chief Justice Warren Burger resigned in June 1968, President Lyndon Johnson – then in his final six months in office – nominated Justice Abe Fortas to be the new Chief Justice. Mr. Fortas was known to be LBJ’s “inside man” on the Court – a role that troubled some of his colleagues who thought he talked to the president too much.
With a Democratic Congress in his corner, President Johnson thought he held the high cards. But various ethical issues, including a fee of $15,000 (then equivalent to 40% of a justice’s salary) for nine speeches to American University’s Washington College of Law – paid by private sources that represented business interests connected to 40 companies – produced a Senate filibuster on Justice Fortas’s nomination. Senators of both parties also objected to a president making a Supreme Court nomination during his final year in office. When a cloture vote on the filibuster garnered fewer than the 60 votes needed to stop debate (i.e., 45-43), Justice Fortas asked President Johnson to withdraw his name from consideration. Chief Justice Warren then stayed on through the balance of President Johnson’s term, stepping down in 1969 after President Nixon named Warren Burger to the office.
Mr. Obama has announced his intention to nominate a replacement for Justice Scalia “in due time,” but Senate Majority Leader Mitch McConnell (R-KY) also announced that the Senate would decline to vote on any nominee for the Court made by Mr. Obama in his final year in office. Senator Chuck Schumer (D-NY) made the same recommendation in 2007, some 18 months before the end of George W. Bush’s term.
Speculations have been flying about a possible “recess appointment” by Mr. Obama, should the Senate decline to vote on the president’s nominee. But experienced observers note that the High Court previously struck down an attempt by Mr. Obama to make such an appointment when he claimed the Senate was in recess, although the Senate was still in pro forma session. Republicans know that they absolutely cannot allow Mr. Obama to change the Court’s composition with an end-of-term nomination. So there is little doubt that the GOP’s leadership will keep the Senate in session until the end of Mr. Obama’s term. It seems unlikely, however, that he will attempt the non-recess recess ploy on such an important office.
My estimate is that the president will stay well clear of this thorny issue for two primary reasons. First, because he will want to leave office amid a wave of good feeling and bonhomie – not fighting a bitter rearguard action over a questionable recess-appointment as he goes out the door. With historians already calling his presidency the most contentious and divisive ever, he won’t want to throw any more gasoline on the fire. He’ll leave the new Supreme justice to the next president.
The second reason that I see for Mr. Obama to hand the nomination off to the new chief executive is more complex, politically. By leaving the nomination unfilled when he leaves office, Mr. Obama will enable Mrs. Clinton to use it to request support from minority and youth voters. She can promise to appoint a new justice who will look after their interests better than any GOP president’s nominee is likely to do. This is a left-handed appeal for votes, to be sure, but it’s all she’s got to offer these demographic groups.
This is where the Supreme nomination-issue could become Hillary’s Miracle. Mrs. Clinton has been unattractive to minority and young voters who came out heavily for Mr. Obama in 2008 and 2012 and put him in office. But it has been far from clear that these groups will support a white grandma who offers them little except vague assurances. The promise to radically change the High Court’s composition throws all the cards up in the air. Will this play out in Mrs. Clinton’s favor? Or will it be the same kind of delusionary “miracle” that the death of FDR was for Herr Hitler?
I predict that it will be the latter. I still believe in the fundamental good sense of the American people. We can be fooled once (or even twice) by a great-sounding, sharply dressed candidate who promises the moon. But a promise to name a new Supreme Court justice, while continuing policies that keep us in the economic doldrums, won’t do it for most voters. Deep down, they don’t trust Mrs. Clinton any farther than they could throw her. In the final analysis, that will be the decisive factor.