Could Scalia's death change the course of the U.S. election? - Macleans.ca

Could Scalia’s death change the course of the U.S. election?

When it comes to choosing a new Supreme Court judge, the Republicans might not like any of the choices

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In this Oct. 18, 2011 file photo, U.S. Supreme Court justice Antonin Scalia looks into the balcony before addressing the Chicago-Kent College Law justice in Chicago. (AP Photo/Charles Rex Arbogast, File)

In this Oct. 18, 2011 file photo, U.S. Supreme Court justice Antonin Scalia looks into the balcony before addressing the Chicago-Kent College Law justice in Chicago. (AP Photo/Charles Rex Arbogast, File)

The death of Antonin Scalia, one of the most influential conservatives on the U.S. Supreme Court, came as a shock. It was the most sudden death of a sitting justice in a long time, and throws into doubt a lot of the results for the current court term. But more important, this is going to become an election issue, and create a Supreme Court confirmation battle, the likes of which we haven’t seen in decades.

The Supreme Court is closely divided, deciding many important cases by a 5-4 margin, like the recent decision on gay marriage. The swing vote on these issues is Anthony Kennedy, a socially liberal conservative who was appointed by Ronald Reagan when a more conservative nominee, Robert Bork, was rejected by the Senate. If Bork had been confirmed, many cases would have gone in a more conservative direction. So everyone knows how important Supreme Court appointments are: many voters vote specifically on the question of the federal courts and whether liberal or conservative judges get onto the bench.

President Obama had little trouble with his two Supreme Court appointments so far, but he had a Democratic-controlled Senate at the time, and in both cases he was replacing liberal members (liberal Republican appointees, but liberals nonetheless). Now the Senate is controlled by Republicans, and he’ll be trying to replace one of the Supreme Court’s most reliable conservatives. This is going to be a battle, and Senate Majority Leader Mitch McConnell has already written that he opposes letting Obama fill the vacancy. It’s unprecedented for a vacancy to remain unfilled for nearly a year—the Republicans did filibuster Lyndon Johnson’s attempt to appoint a chief justice, but that was just a promotion of a sitting justice, and with much less time to go in his term.

And yet while it’s unprecedented, you can’t say that it’s irrational, or even wrong. Back in the day, Supreme Court justices were less ideological, partly because the parties were less ideologically divided. George H.W. Bush appointed one liberal justice (David Souter) and one conservative (Clarence Thomas). This doesn’t happen any more, and probably will never happen again. Clinton, George W. Bush and Obama have all appointed justices who are clearly on their party’s side in most important cases. Almost anyone Obama would appoint would be to the left of Scalia on most things, and that would transform the court on a ton of 5-4 decisions.

So blocking Obama’s appointment seems like the politically rational thing to do, just as it was politically rational for the Democrats to block Bork. Back then, the best the Democrats could hope for is what they got—an appointee who was not as conservative as Bork, or the last man Reagan appointed, Scalia. Today, the Republicans have a chance—if they can stall long enough—to kick the replacement of Scalia over to a Republican president.

Now, that doesn’t mean they will do it. There are problems the Republicans face in deciding how far to go in opposing Obama’s nominee (whoever it is). If they kick it into 2017 and the Democrats win the presidency, they might be looking at a replacement who is to the left of whoever Obama might have picked.

There’s also the Trump problem. Donald Trump right now looks like the Republican front-runner, and no one thinks he cares much about the social issues that animate many voters, and that the Supreme Court is in the best position to deal with. Trump’s first statement on Scalia was mostly boilerplate, unlike more reliably conservative candidates who care deeply about the Supreme Court. If Trump wins, he might wind up appointing a terrible (from the conservative point of view) judge just because he’s not paying any attention to the issue. Certainly there’s no way the Republicans in the Senate would trust Trump to get this right.

So the Republicans’ stance on this might depend on two things. One is whether Obama can come up with a nominee who can peel off at least some Republicans—say, a pro-choice Republican. The other is whether Trump continues to be the front-runner. If it looks like a choice between a Clinton or Sanders presidency and a Trump presidency, the Senate majority might decide to take its chances with Obama.

But it’s possible to see how this could prevent Trump from even becoming president. Because voters care so much about the composition of the Supreme Court, this could provide an opening for other candidates to attack him as soft on judges. Unlike Trump, who said nothing about the issue in his statement, Ted Cruz said immediately that the next president (namely, him) should get to pick Scalia’s replacement. Rubio said the same thing. By now we all know better than to believe that Trump will ever get in trouble for not being a real conservative, so it would be silly to predict that this line of attack could work. Still, it’s there, and the Republican candidates will be under heavy pressure to support any means of blocking Obama’s pick. (Update: At the debate that shortly followed Scalia’s death, Trump responded to this question by simply saying that the Senate should “Delay, delay, delay!” That should help him.)

And when the Senate Republicans block Obama’s appointee, this could also change the course of the Democratic nomination: the fight will revolve in part around who is better equipped to go against Senate obstructionism, and to push court nominees past the Senate Republicans. Hillary Clinton’s statement got right to the business of demanding that the Republicans allow a vote on Obama’s nominee; Bernie Sanders did not. That could hurt Sanders, giving him a reputation as someone who doesn’t care enough about practical politics. Because in today’s polarized U.S., practical politics revolves around the Supreme Court—and voters aren’t likely to pick someone who doesn’t understand that.