Sunday, February 14, 2016

In the wake of Antonin Scalia's unexpected passing, now what?

Antonin Scalia, Supreme Court Justice
(March 11, 1936 – February 13, 2016)

With the unexpected and sudden passing of Justice Scalia, many questions abound on what happens to his seat during this time of fragmented government and a highly contentious presidential campaign. Arguably, the strongest conservative voice on the court, President Obama will surely nominate someone well to Scalia's left ideologically. Leaders of the Republican party have forcefully expressed their intent to handle things in such a way that the next President will nominate a successor to the fallen Justice. The President and his fellow Democrats feel strongly that the Senate should hold confirmation hearings and consider whoever Obama puts forth.

The politics are intense in this matter, and not without complexity.

With a mostly evenly devided Court, each nomination potentially sways the institution one way or another. Reflecting the Country, a divided court is probably best as opposed to a heavily lopsided one. Swing vote Justices, like Anthony Kennedy of perhaps Chief Justice John Roberts, carry a tremendous amount of power in determining the Court's path. Nominations really matter in times like this, and with 2-3 other Justices getting up in age, there may be more replacements needed over the next few years. Just one of the reasons this Presidential cycle is so important for both parties. The next POTUS may appoint several justices, potentially altering the "split" nature of the Court, the effect of which, would touch many aspects of American life for decades to come.

Everyone can point to their pet campaign issue of the debt, foreign affairs, the economy, entitlements, etc., but one issue that potentially / eventually effects everyone is how the Supreme Court rules on its cases. Citizens United, a challenge to Roe V Wade, the pending Unions case, perhaps a new challenge to the Affordable Care act, etc. Each effects thousands of Americans in unique ways.

What do conservatives want?

Conservatives want two things. First, they want to delay any actions taken that would result in a new Justice being confirmed. They understand that Obama will replace Scalia with a progressive mind, probably moderate, and that the effects of that eventuality would be devestating to the Conservative cause. Secondly, they want to win back the White House next November. Give the current state of disarray in the Republican field, they have to feel their best chance lies in delaying Scalia's replacement at almost any price. President Obama is clearly acting within the Constitutional scope of his powers to nominate a candidate for the Court. Likewise, via the somewhat elusively defind "advise and consent" clause of  Article two, Section two of the Constitution, the Senate can delay the process indefinately. (Not without a cost, of course...)

What do progressives want?

Progressives also want two things. First, they want to move forward deliberately with the nomination process and see Senate Confirmation hearings happen within the next few months, resulting in a confirmed nominee to fill Scalia's seat. Secondly, they too want to win the Presidential Election come November and be positioned to fill another 2-3 seats on the Court. The Democrats fear an uncooperative Senate and then worst of all, losing the election in the Fall. That would be a disaster for both short and long term considerations. President Obama would like nothing more than to see an unexpected Supreme Court appointmentbe the cherry on his last term.

The politics of it all...

So many moving pieces to consider.

If the Senate Conservatives get their way, there won't be any vote, regardless of whom President Obama nominates. It's a kind of shitty way to impede the Court's restroration to full status, but this isn't flag-football, people. The more moderate Republicans still around may warn of the potentially high price their party may pay for such a stunt, but for the most part, no one else in that party is paying attention anymore.

If the nomination process is blocked by the Senate leadership, look for the White House and both Democratic candidates Clinton and Sanders to use this a club to beat the GOP field with regularly. They will tell the country that the Senate is merely holding things up so as to avoid Obama filling another SCOTUS seat. The Conservative base couldn't care less, but what will moderate conservatives and independents think of such a plan? Does it become a campaign issue with traction for indy voters? Dangerous ground here to tread for the GOP.


You've heard the phrase,  "...better the devil you know than the one you don't." While refusing to grant advise and consent to the sitting President and his nominee, what happens if they succeed in blocking Obama short term. Let's assume Hillary Clinton wins the Presidency. Would she put forth candidates more or less progressive than Obama would? I think that after delaying the entire process and beating the mantra "the next POTUS should pick the next Supreme Court Justice" to death, they'd be in a weak position to then obstruct a Clinton nominee.

Speaking of Clinton, while thought to be more of a hawk on military matters than President Obama, Vermont Senator Bernie Sanders - Clinton's only competition in the race for the Democratic nomination this cycle - has forced HRC to move to her left. If Clinton wins in November, does she submit a moderate progressive to faciliate bi-partisanship or does she put forth a staunch progressive, to take advantage of her political capital from winning the election? What if Sanders wins? Wouldn't he certainly push for progressives on the bench? Of course he would.

Given that, isn't there an argument to be made that the Senate Republicans shouldn't break any speed records, but given the potential for a worse otucome that what Obama might give them, agree to work with President Obama and give him one more appointment.

It may be the Republican's best chance at a more moderate voice replacing the voice of Justice Scalia...


Here are two very enjoyable reads on this issue from the SCOTUSBLOG, a terrific web source for all things Supreme Court.

The first is an article by Tom Goldstein, Publisher of the SCOTUSBLOG, on who Goldstein thinks is the favorite to be nominated by President Obama.

The second is one by the legendary Lyle Denniston, who has covered the Supreme Court since 1958. Denniston gives us an inside look at the current machinations within the Supreme Court and how Scalia's passing will likely effect the Court's short term future.


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