The passing of Justice Antonin Scalia looks to have some very interesting consequences in the coming months. As the longest serving justice at the time of his death and the leader of the court’s right flank, Scalia leaves behind a strong legacy. Few Supreme Court Justices provoke as strong reactions from the public as he did. Though the other three reliable conservatives on the court (Roberts, Alito, and Thomas) all voted with Scalia at least 86% of the time, none gets the same fawning from conservatives (particularly Roberts at this point) nor the disdain from liberals that Scalia attracted. He was looming figure and one that was obviously intelligent, principled, and influential. He will continue to live on as an intellectual and philosophical giant among conservative legal circles.
Senate Majority Leader Mitch McConnell has stated, ““The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” This is absurd on its face. It is the president’s constitutional duty to “nominate…judges of the Supreme Court.” While this is done with the “advice and consent of the Senate,” there is no reason for a senator to exhort the president to maintain a vacancy on the Supreme Court for what would certainly amount to over a year. Further, the Supreme Court is not the People’s Court. By design, the Supreme Court is the least democratic institution laid out in the Constitution. It is a check on political branches that are beholden to the people. To suggest that for this nomination the public deserves any more input than they have always enjoyed is to dismiss Article II of the Constitution and more than two centuries of precedent. Informed voters should know that the Supreme Court is an incredibly powerful institution with the ability to change the functioning of the country overnight. Any abortion foe or gay marriage advocate is well aware of this. When voting in a presidential or Senate election voters should consider the secondary or tertiary impacts of their votes, the constitution Supreme Court being one of these. Still, the Supreme Court always has been distant from the whims of voters and ought to remain so. It is irresponsible for a six term senator to propagate any myth about the people deciding what the court looks like.
The process of replacing Scalia on the highest bench is going to be dramatic. Despite Mitch McConnell’s fantasies, I think everyone can anticipate President Obama naming a nominee. The real question is whether President Obama will name someone who can satisfy the Senate.
Republicans should be wary of overplaying their hand and delaying until after the elections. While the have the ability to be absolutely obstructive now, they do stand to lose the both the Senate and White House in November. The general election is months away, but I remain skeptical of the GOP’s chances to get their man, whoever that may be, in the White House. Prediction markets agree with me on this point (or maybe I should say that I agree with the markets). Of course, this is subject to change. The primary process is long and we are no closer to knowing the general election matchup than we were a month ago. The emergence of a strong consensus Republican candidate and further erosion of support for Hillary Clinton could lead to a change in parties in the executive. As it stands though, the Republicans face an uphill battle. Retaining the Senate seems more realistic, but here the Republicans are stuck defending 24 seats while the Democrat defend only 10. If Obama names a squishy conservative or a moderate to the court and Republicans block it and subsequently get drubbed in the election by the Democrats, they could end up looking particularly foolish. A new Democratic president with a Democratic Senate could then install a liberal Justice that would fundamentally shift the Supreme Court.
The Supreme Court with Scalia was quite balanced though right-leaning. With four reliably liberal conservatives and four reliable conservatives, no ideology can be seen as dominating the Roberts Court. President Obama will seek to push the Court to the left. It is unfathomable that he would nominate a Scalia clone. However, I would be similarly surprised if he nominated a hardened liberal judge. With the current Senate makeup, he stands no chance of getting a liberal dream pick through. It would seem that for Obama his best hope is to pick a nominee that will satisfy at least a sizable minority of Senate Republicans and not scare away Democrats. Nonetheless, we can anticipate that he will push for a leftward shift. When replacing a Justice near one bound of the ideological spectrum, any nominee closer to the mean will be seen as creating a shift.
I am curious to see how President Obama plays this, whether he opts for a politically pragmatic pick or shoots for the moon. The last significant shift in the Supreme Court came under George W. Bush when Sandra Day O’Connor’s seat was taken by Samuel Alito, transforming a swing vote into a conservative spot, though even this was not a revolution. Justice O’Connor, like Anthony Kennedy, could viewed as a conservative, albeit a squishy one. My money would be on Obama to name someone in this mold, though perhaps someone who is reliably pro-life as means of assuaging conservatives. In any case, this will create ripple effects through the election cycle as Supreme Court nominations gain the spotlight as a consideration when voters pick candidates.