Supreme Court Opening Creates ‘Battle of a Different Order’

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Elephant and donkey touching faces together
A highly polarized megabattle over the shape of the Supreme Court could continue well beyond the November elections.Photo: John Lund/© Corbis. All Rights Reserved.

It’s already clear that the timing of Justice Antonin Scalia’s death and the array of crucial issues facing a closely divided SCOTUS will make the shape of the Court a campaign issue for the first time in living memory. But a variety of factors will make this fight unusually ferocious — and perhaps irresolvable — as well. 

With one opening on a 4-4 Court and three other justices over the age of 75, the immediate issue of the Scalia replacement may well merge into a more sustained battle based on the idea that the next president will likely shape SCOTUS and constitutional law for decades to come. This basic reality could be obscured by the Kabuki theater we are already experiencing around President Obama’s decision to name a new justice. Don’t get confused by the intra-Republican indecision as to whether its Senate majority will rule out confirmation of an Obama nominee or will go through the motions and then kill the nomination by filibuster or a flat negative vote. However it plays out, Obama will not get a new justice. And so all the noise we will hear for and against Obama’s choice will simply be agitprop aimed at influencing the presidential election and/or preliminary skirmishing for the real battle in 2017. 

The bigger question is how that battle will conclude. The Senate tradition of minimal deference to a president’s judicial nominees is already dying if not dead. Only five Republicans supported the confirmation of Justice Kagan in 2010. Only four Democrats voted to confirm George W. Bush’s last Court nominee, Samuel Alito. As long as the filibuster is available in SCOTUS confirmation votes, it will only take 41 senators to block any given nominee. Indeed, if this year’s elections produce a White House and Senate controlled by the same party, the most momentous decision may be whether to extend Harry Reid’s 2011 "nuclear option" outlawing the filibuster for lower-court judicial and Executive-branch nominations to high-court nominations. If that doesn’t happen or if different parties control the nomination and confirmation process, we could see an extended stalemate on Supreme Court nominations that could easily become a crisis as cases pile up, especially if new vacancies occur.

In this atmosphere, advocates and interest groups invested in the direction of the Court may fear compromise from their own “team” as much as any perfidious action by the opposition. And so they will cooperate tacitly in polarizing the debate over justices even more. 

One participant in a preliminary White House call to liberal activists on the president’s plans to name a Scalia successor summed up where we are likely headed quite pungently:

It’s going to be the entire progressive movement up against the entire conservative movement,” said Frank Sharry, an immigration activist whose organization was represented in Tuesday’s White House call. “I do think it’s going to be a battle of a different order.”

And it won’t end this year.