WASHINGTON, Feb. 16, 2016 – Like almost every other issue in this incredibly long political season, the death of Supreme Court Justice Antonin Scalia has become a partisan issue. It has drawn sharp statements and much saber rattling by both sides and blown up social media with seemingly intransigent positions.
Yet, ironically, the overt gamesmanship could result in a surprise ending.
President Obama fired the first shot, saying he would exercise his constitutional duty and nominate a replacement for Justice Scalia to fill the Supreme Court vacancy. Republican leaders and candidates quickly parried, declaring that Obama should “let the people decide” the next justice by waiting until after the 2016 election.
The Democratic riposte was that the people had already made their decision, by electing President Obama to two terms. The Democratic Party also screamed “unconstitutional,” saying the move undercuts the constitutional definition of a presidential term by suggesting that a lame duck president no longer has the right — and responsibility — to carry out all the duties assigned to the president in the Constitution.
En garde indeed.
Somewhat overlooked in the political fencing match is the question of what happens with the current Supreme Court agenda. Currently, the court is evenly divided between conservatives (4 justices) and liberals (4 justices). That means there is a fairly good chance that decisions — especially politically-charged decisions — could end in a 4-4 tie.
If there is a majority decision, the ruling will stand.
If there is a tie, however, there are a couple of options. One option is that the lower court’s order, the one the Supreme Court was scheduled to consider, will stand. This does not mean the court is upholding the decision of the lower court, but rather it is as if the Supreme Court never heard the case.
The other option, which scholars increasingly believe is the most likely option, is that the Supreme Court would order re-argument of the case after a new justice is named. In other words, the case gets a do-over and starts from scratch.
Neither of these outcomes is appealing, especially considering the current cases facing the Supreme Court. Cases such as immigration and the legality of President Obama’s immigration policies, the ability of states to limit Roe v. Wade, whether women can get birth control even if their employer objects to contraception on religious grounds, the future of public sector unions, redistricting of congressional maps, the legality of affirmative action and the legality of President Obama’s climate change initiatives are all on the Supreme Court docket.
Many, if not all of these, could face a split Supreme Court and remain in limbo at least until a new justice joins the court.
Which raises the next question: how long the court is likely to go without a ninth justice.
Ironically, the very public stand by both sides could actually lead to a more moderate, more palatable and expedient new justice than if both sides had kept quiet and held their political cards close to their chest.
Obama desperately wants to see a judge of his choice on the Supreme Court. However, he clearly will not nominate a staunch conservative who will sail through the Senate just to win that point.
On the other hand, Obama is also not likely to play directly into the GOP’s hands by naming an extreme liberal whom they can dismiss immediately. This would provide good liberal press, but ultimately would accomplish nothing.