Elections matter. In 2012, President Obama won the right to nominate judges and justices to fill vacancies on the bench — both in the lower federal courts and on the Supreme Court. In 2010 and 2014, the Republicans won the right to vote down any unacceptable nominees.
Earlier this morning, Justice Antonin Scalia passed away. In 1986, President Reagan nominated Justice Scalia to fill the Associate Justice spot that had belonged to Justice Rehnquist when President Reagan nominated Justice Rehnquist to be the new Chief Justice. For most of his career, Justice Scalia was the intellectual leader of the ultra-conservative wing of the Supreme Court. This vacancy — if filled during this Administration — would be the first time since 1970 that a majority of the Justices on the Supreme Court will be Democratic appointees. This vacancy will have both short term and long term impacts on politics.
The immediate short term is that — except for a handful of issues — Justice Scalia is generally a solid vote for the “conservative” side of legal issues. Those cases that would have been a 5-4 split in favor of the conservative side will now be a 4-4 split. On a 4-4 split, there is no decision and the lower court opinion stands (unless the Supreme Court opts to reschedule the case for the following term). Additionally, as it takes a favorable vote from four justices before the Supreme Court grants full briefing and argument on a case, the tradition when there is a vacancy is to hold cases that have three votes for full review. In particular, the continued extension of “free speech” rights to make it easier for conservatives to raise money and harder for liberals to raise moneys is temporarily on hold. The current opt-out provisions for the contraceptive mandate will probably also survive. Any decision on the immigration policy will either favor the White House or leave it back to the lower courts to decide on the merits (the current issue before the Supreme Court only concerns a temporary injunction pending a full trial).
The medium term depends upon how events play out the rest of this year between the Senate and President Obama. Already, some Republicans are hinting that they will simply refuse to consider any Supreme Court nominee that President Obama might make. My personal opinion is that this stance will prove to be untenable. However, the Republicans have the votes to reject every nominee. From the White House position, President Obama could nominate reliably liberal candidates. Such a policy would give the Republicans easy targets and make it easy for them to justify “no” votes. There are, however, multiple Republican senators who have to run in swing states. A more centrist nominee would put pressure on those Senators to vote for confirmation or make it clear that the Republicans are trying to run out the clock.
The long term depends upon the Democrats winning in November (both the White House and the Senate). Filling this vacancy and getting to appoint younger liberal Justices to replace Justice Ginsburg and Justice Breyer would lock in a liberal majority on the Supreme Court for the next fourteen years. Even if President Obama gets to fill the vacancy, the likelihood of additional vacancies over the next four years will probably make the Supreme Court an election issue. If the Senate has been blocking any efforts to fill the Scalia vacancy for eight months, it may become a major campaign issue.
