Policy watchers are in a bit of shock today wiith the news of Justice Antonin Scalia’s sudden passing in Texas. There will be those who say that it is far too early to begin analyzing and speculating about the implications of the Supreme Court vacancy, but this is simply untrue. The man himself lived a certain life by certain ideals, and the point is not to comment on those values here or on the man himself. But people in Justice Scalia’s position have enormous influence on the lives of others, and when they vacate lifetime positions it’s not merely a personal tragedy for themselves and their families, but an issue of monumental significance to the lives of millions. Those millions deserve to know how these events will affect them going forward, regardless of the circumstances of the unfortunate individual in the position of power.
The reality now is that the fight over the next SCOTUS nomination will likely become the greatest battle of the final year of the Obama Administration. It will also present an enormous risk for Republicans, which will likely be a useful political advantage for Democrats in the upcoming election year.
Republicans will be sorely tempted to make an unprecedented blockade of any incoming Obama nominees to the Supreme Court until the next president is elected. They will argue that the American people should get to decide the future of the Supreme Court as well as the Presidency. But the refusal to confirm a nominee for nearly a year will also paint Republicans as obstructionists who are unable and unwilling to govern or compromise. Should a nominee fail to be confirmed, it will also serve as a clear reminder and motivator for potentially apathetic moderate and liberal voters to come out to the polls.
On the other hand, Republican legislators have generally found themselves to be more concerned about threats from their right flank than from their left. Any Republican Senator who votes to confirm an Obama nominee will almost certainly be hit with a hard-charging conservative primary battle during their next cycle.
Though unlikely, Republicans may be tempted to dodge all of these outcomes by seeking a compromise choice with President Obama. President Obama, for his part, may be tempted to appoint a compromise justice in exchange for legislative priorities–or he may take a more aggressive approach, figuring that Republicans will renege on any potential deals and knowing that Democrats hold the advantage under the circumstances. I expect that President Obama will take the latter option, but one never knows for certain.
In any case, the theoretical issue of Supreme Court appointees that has been driving much of the Democratic primary debate has suddenly become an intensely practical concern, particularly since little effective legislation is likely to come out of the 2016 cycle.
There is also the issue of the Court itself in the absence of its 9th member. With only eight justices, we are likely to see more per curiam decisions that uphold lower court rules and fail to establish precedent. Given the anti-precedent conservative-tilting lurches of the Roberts court in many areas so far, it seems likely that labor and environmental interests may be able to breathe some sighs of relief regarding some pressing issues currently before the justices.
How it all plays out remains to be seen, but the stakes have suddenly risen dramatically.