A Supreme Court Vacancy in an Election Year

The vacancy is going to be tough on the GOP, which is why they’ll probably confirm a moderate liberal justice long before the election.

First, although I disagreed with many of Justice Scalia’s opinions, both legal and otherwise, may he rest in peace and have the best of luck in his future endeavors.

The fact is that a vacancy in the Supreme Court is just that, and we ought to fill it. Why?

  1. If there’s another hanging chad election a la Florida 2000, a Bush v. Gore in 2016 would get deadlocked in the Supreme Court and the appellant thereto would lose. In the case of Bush v. Gore, Bush would have lost if there had been a conservative vacancy in the court. The decision was divisive enough as it was, but to have the case decided by anything less than the top court would have made it that much worse.
  2. If there are splits in cases of original jurisdiction to the Supreme Court, of which there have been two in the history of the court, unlike appeals where the lower ruling stands, flip a coin. In one case they let it gather dust, while in the other they delivered an order despite the split—a sort of tie goes to whomever situation—only to overrule themselves later.
  3. The splits on appeal are almost as bad, leaving the law different depending on the circuit, at least until a whole Supreme Court can come to a decision (or the split is broken).
  4. For standing cases, the court may follow the argle-bargle approach as with original jurisdiction: sometimes rehearing once a full bench is present, other times affirming-by-split.

In other words, leaving the vacancy and dealing with the fallout is very much a kludge.

Arguments that the Republicans could benefit by stalling and hoping a Republican wins the 2016 election (and/or that the Senate stays in Republican hands) are worth examining, too.

  1. If the Democrats retake the Senate, the stalling is a loss: they can confirm a replacement (either before the next president is sworn in, or, at their option, letting the next president nominate someone else).
  2. Stalling will hurt marginal GOP Senate candidates. This leads right back to the first list item, but this harm goes beyond the SCOTUS balance. If the elections are close anyway, bad optics can tilt the scales. And Senate elections in presidential years tend to be closer.
  3. Stalling will hurt the GOP nominee for president. They will have to stand before the people and argue that they know the perfect judge that deserves the seat. They, essentially, want to pick the winner and loser. But they also will have to basically state that if they win, they won’t nominate anybody in their last year. It’s just constitutional mutilation.

But the GOP has to save face. The rest of their base, outside the handful of Senate seats, will send more Cruzites to muck things up even more for them if they can’t deflect the idea that they caved to President Obama.

I suspect that Obama will announce the nomination of a fairly moderate liberal. The Senate will wring its hands, shooting off a lot of fireworks from folks like Senator Cruz. They will find some way to save face, possibly by wearing welding masks, but will eventually move forward on the nomination.



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