Photo from Shawn/Flickr
By Janelle Clausen
Supreme Court Justice Antonin Scalia had barely passed away when a depressingly despicable partisan firestorm emerged.
Republicans are pushing against President Obama nominating a replacement, but there’s nothing in the Constitution that says the President can’t nominate anyone in his last year.
Article II of the U.S. Constitution simply grants the President the responsibility of nominating justices to serve on this highest court of the land, with the advice and consent of the Senate.
Antonin Scalia, despite being notoriously conservative, was unanimously approved by the Senate in 1986. Ruth Bader Ginsburg was approved 96-3 in 1993, despite her well-known work with the American Civil Liberties Union.
The point I’m making is this: Partisanship really shouldn’t be an issue in this. But it is, and a lot is at stake this election year.
Scalia was a conservative icon fairly often sided with the right side of the Supreme Court. This usually meant a 5-4 split on ideological issues, with the libertarian Justice Kennedy being the swing vote.
Now it’s completely even, and a tie vote effectively upholds lower court rulings. This could keep things like affirmative action and the power of unions intact— for now. President Obama appointing a liberal justice would tip this balance, likely for a few years.
Unified opposition to nominating a Justice isn’t unheard of. But if the Republicans blocked the nominations until Obama’s term ends on Jan. 20, 2017, it’d be the second longest time with a Supreme Court vacancy, the longest vacancy being 391 days. It’s gross, but not unprecedented.
It’s also a gamble that might be worth taking.
If a Republican president is somehow elected, they could end up appointing multiple justices. It’s probable that Ruth Bader Ginsburg could pass away, given her age and previous health issues. Stephen Breyer, another Bill Clinton appointee, also isn’t very young anymore. In their absolute best case scenario, Kagan and Sotomayor could be the only liberals left on the court.
That’s a 7-2 split that would likely rule against unions, environmental controls, market regulation, reproductive rights and affirmative action- all the things Democratics hold dear. Further challenges to the Affordable Care Act could see its complete dismantlement rather than its survival. Freedom, the Republicans would say, would finally reign.
And, at the very least, conservatives could retain their majority on the Supreme Court by appointing a younger Antonin Scalia.
(Want to read more about ideology’s impact on the Supreme Court? I’ve got another blog for that.)
But of course, this could all blow back in their face. The American people could see Republicans as obstructionist jerks and vote them out of numerous legislative seats, not to mention elect another Democratic president. Then you’d likely have a super liberal from a Sanders or Clinton administration and a favorable vote for the aforementioned issues.
In short, it’s high risk/high reward for the Republicans. It’s not clear yet who will win the election. Maybe Marco Rubio can recover and defeat Clinton, continuing a pattern of switching parties every two terms or so. Maybe Donald Trump will surprise us all and somehow win. Maybe Ted Cruz can get his courageous conservatives to actually get out and vote. That is, after all, key in any election.
What’s clear, however, is that it speaks very poorly of us as the United States of America. Our nation is more polarized between the political left and right than ever. The touching friendship shared between Ruth Bader Ginsburg (a liberal) and Antonin Scalia (a conservative) is now a foreign entity. As things are now, there can be no compromise.