How the Scalia Succession Fight Could Get Even Hotter

We have a post up by Ohio State constitutional law professor Peter Shane. It’s really a good resource if you want to know how many different ways the Republicans can obstruct the Democrats’ efforts to replace Antonin Scalia on the Supreme Court. It basically maps out which tactics the GOP can use at different points in the timeline and what kinds of things the Democrats can do in response.

It’s also a simple lament that things have come to this point where institutional norms have completely broken down. Here’s a taste:

What is happening is a dispute over norms – some call them “conventions” – which are the unwritten, but mutually accepted ways of doing business that allow parties and institutions in conflict to work together in spite of conflict. Thirteen years ago, I wrote a law review article decrying what I saw then as a dangerous corrosion in those institutional norms that had enabled frequently divided government to nonetheless achieve great things in the United States between the end of World War II and the late 1970s. Matters since then have grown much worse.

A president with 11 months to go in his term could reasonably expect, based on well-established norms, that the act of nominating a Supreme Court Justice will be viewed as a routine and wholly appropriate fulfillment of his duties. A president could reasonably expect the nominee to receive a hearing. Senate opposition on grounds of judicial philosophy rather than credentials might well be predictable also, but the legitimacy of a nomination and the expectation of a full hearing would seem to be unquestionable. The assertion by Senate Majority Leader Mitch McConnell (R-KY) within hours of Scalia’s death that “this vacancy should not be filled until we have a new President,” immediately threatens to explode these norms.

If the Republicans make good on that threat, how could the interbranch conflict become more inflamed? Here are three possibilities, each fit for an Aaron Sorkin screenplay:

If you want a heads up on what’s coming (or could be coming) you’ll definitely want to read the whole thing.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.