On the Death of Antonin Scalia

On the Surface

Supreme Court Justice Antonin Scalia was found dead today, and President Barack Obama has announced his intention to nominate a new Justice before his term ends. This sets up a huge clash with Republicans, especially during an already-contentious presidential campaign.

A Legacy for Barack Obama

When asked if he had any regrets as President, Dwight D. Eisenhower famously replied, “Yes, and they’re both on the Supreme Court.” Appointing a Supreme Court Justice (who will then serve for life) is arguably the most important thing that a president can do during his or her tenure:A Justice will determine legal precedent for decades after a president has left office, and a president will nominate someone who generally adheres to his or her political philosophy (just as Scalia did to Reagan).

Obama now has the chance to nominate a third Justice (following Sonia Sotomayor and Elena Kagan). He has the means to follow through on the appointment: he’s already declared his plans to do so before his term is up (and that’s especially likely to occur, given that his previous nominations only took 2 and 3 months, respectively, to pass, and that he still has nine months left in office before he becomes a lame duck).

A Political Firestorm

Imagine the political arena as a tinder box: Scalia’s death is the spark that could light it all afire. Before Scalia’s death, there were basically four liberal justices, four conservative justices, and one justice who switched between sides. Now that Scalia, one of the most conservative justices, is dead, the balance has been upset.

First, Senate Republicans will do everything in their power to prevent Obama from appointing a replacement (and have already been urged to do so by most of the GOP candidates). However, such tactics have the potential to backfire: they could shift public opinion against the Republican party just in time for the November elections. Regardless, expect a prolonged battle in the Senate.

This has two possible implications, depending on who wins the general election in November (and assuming that Obama’s appointment is indeed successful).

If a Democrat wins, things would generally stay on the same course. It’s unlikely that Scalia would have remained on the court for another nine years, and so it doesn’t matter if Obama or another Democrat (likely Hillary Clinton) appoints his replacement. Scalia was unlikely to still be on the court 9 years from now, so if one Democrat or another picks his replacement, it won’t make much difference.

However, things get dicier if a Republican gets elected in November. Obama’s appointment will likely mean that the Republican president will only get to appoint three justices rather than four (this involves speculation that three of the current justices will retire from the bench–Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer). Obama’s choice would have effects for decades, which would inevitably prove an enormous roadblock for a Republican administration.

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