Justice Scalia’s untimely departure

The Thinker by Rodin

One week later and I’m finally back blogging. Mostly I was out of town attending my father’s memorial service and all the family events that go along with it. It was all quite a blur. While my family grieved, reconnected and moved forward, the world kept moving forward too, I just wasn’t paying much attention. In politics this included a Republican and Democratic debate (which events forced me to miss) and the sudden death of Justice Scalia on Saturday, which I did not miss.

We were winding down from family events at a friends’ house when the news of Scalia’s death was announced. Almost in the same breath everyone had moved past the death of a man and onto the many political implications of who would replace the conservative jurist. It was embarrassing on both sides. Within an hour Senate Majority Leader Mitch McConnell (KY) announced the Senate would not take up the confirmation of an Obama nominee. A couple of hours later President Obama was saying nice things about Scalia while letting everyone know he was going to nominate a new justice anyhow. Scalia’s body had not even cooled!

And then the real craziness began. Candidates for president started chiming in not on Scalia’s career but on what they thought should be done about his replacement. CNN and all the news channels went into overdrive with mostly poorly informed opinions about what this transition means. Liberals cheered while conservatives started filling the moat with crocodiles and raising the drawbridge. In some ways this was everyone’s worst nightmare. The timing of Scalia’s death was disastrous. Even Democrats would have preferred that he finish the current year before expiring. As if we needed one more reason to heighten the importance of the coming election!

I’ve been sorting out all the opinions and analysis out there about what it all means. As a public service, I thought I’d distill it all down for you.

First, this is going to upset the Supreme Court applecart for the first time since Richard Nixon was president. For four decades the court has been balanced between liberals and conservatives, with decisions generally leaning toward the conservatives thanks to mostly Republican presidents. Scalia of course is perhaps the most prominent conservative on the court and certainly was its loudest one. Brass and opinionated with little interest in judicial decorum, he mouthed off all the time about stuff he should have saved for a memoir. Virtually anyone who replaces Scalia will by definition be less conservative than he is. The only chance Republicans have is if (a) a Republican president is elected in November, (b) he turns out to be very conservative and (c) the Senate does not switch to a Democratic majority again, which is at least a 50:50 probability. So it’s virtually certain that the balance is going to be tipped, at least in the more moderate direction, whether it happens soon or with a new president.

Second, not confirming a new justice will in many ways make things worse for Republicans. Scalia was a reliably conservative vote on the court, so with just eight members during this term decisions will break toward the liberal side. Tied decisions will either revert to the decision made by the appellate court or justices could decide to rehear the case at a later time. Since judges appointed by Democratic presidents control roughly two thirds of the appellate courts, most decisions will bend left minus Scalia’s vote. If the Senate approved another justice it would allow the possibility that at least some of these cases could bend toward the right. Another possible ripple: it may give Democrats extra incentive to turn out to vote, perhaps in larger numbers than Republicans, in which case it may enlarge expected electoral losses by Republicans. In short, by being unnecessarily obstructionist and dogmatic, Senate Republicans are effectively stomping on their own feet.

Third, there is nothing in the constitution that says the president may defer action simply because he is in his final year of office. President Obama is required to make a nomination. Not making a nomination would actually be grounds for his impeachment. The Constitution is quite clear in the Appointments Clause by using the word shall (which is legally binding); it’s a solemn duty he must perform. The Senate must approve or reject the nomination. Excessive delays by the Senate are potentially unconstitutional too. We could see a court case to determine if the Senate must vote on appointments within a reasonable period of time. So suggestions that Obama simply defer nominating anyone would be perilous politically and constitutionally.

Fourth, there is legal precedent for Obama to make a recess appointment for a temporary justice to see out his term. The Senate is currently out of session and a previous Supreme Court ruling stated that such appointments could be made if the Senate is out of session for three days or more. Justice William Brennan got a recess appointment this way from President Eisenhower; Brennan was subsequently confirmed. I don’t expect Obama to go this route but if Republicans are adamant that they won’t hold a vote until after he leaves office, this is one method that appears to be legal that he could use.

Fifth, Scalia’s death and the extreme reactions by Republicans to filling his seat point to the tenuous hold that Republicans have on Congress. It doesn’t seem that way, particularly with their commanding majority in the House. Their House majority is largely a result of gerrymandering following the 2010 census. However, America’s demographics are quickly changing in a more liberal direction. Not only have Republicans done little to address these facts, they’ve made their problem worse by doubling down on policies that inflame voters that might otherwise vote for them. My suspicion is that ten years from now we’ll look at Scalia’s death as the beginning of the end of Republican control of government.

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