Coming as it does at such crucial juncture in this election season - when both party primaries can still go in pretty much any direction, and when even an independent candidate, Michael Bloomberg, is weighing the pros and cons of a run - the fight to replace Scalia is now bound to inject the presidential campaign with a whole new level of significance. It might also reshape American politics for the long run, since the balance of power in the Supreme Court seals the fate of some of the most consequential, and controversial, debates in America. Though the full weight of this event will take time to make itself felt, we should get at least some answers in the next couple of weeks, as American voters take part in the primary contests of Nevada, South Carolina and the dozen or so states of Super Tuesday (March 1st).
Scalia, a pivotal figure in modern American jurisprudence, was a towering presence on the Court, possibly the most influential advocate for “originalism”, the literal reading of the US Constitution. He was firmly in the conservative camp, in an institution that most recently has been as politically divided as the rest of the country. His passing, under the administration of a Democratic President, opens the possibility that that delicate equilibrium (which has favored conservatives since the “swing vote” Anthony Kennedy, a Ronald Reagan appointee, may have sided with liberals at times but is at best center-right) could be turned onto its head.
So it’s no wonder that Republicans are already in a state of panic, confronted with the real prospect of losing the presidency for the third time in a row, of relinquishing their Senate majority only two years after getting it (they are looking at an adverse electoral map in November), and now having to give up the hold they’ve had on the Court for the last several decades.
Within hours of the announcement of Justice Scalia’s death, the GOP leadership and presidential candidates rushed to take up arms. They said President Barack Obama should not bother putting forward the name of a possible replacement, because in this divisive election season, the Republican-controlled Senate are not even going to bring a lame-duck’s nominee to a vote, let alone confirm him or her. The president, echoed by Democrats on and off the campaign trail, responded that he plans “to fulfill my constitutional responsibilities to nominate a successor in due time.” He then added that the Senate has more than enough time “to give that person a fair hearing and a timely vote.” Among other things, for Obama this represents an unforeseen opportunity to cement his political legacy even further.
In a sense, the two parties face a bit of a prisoner’s dilemma. Given the uncertainty surrounding the outcome of this year’svote, they both couldbenefit from cooperating with each other. Obama could propose someone decidedly less liberal that Democrats want, but also decidedly less conservative than Scalia was. And Senate Republicans could just take the offer on the table, rather than staking it all on the hope that someone like Donald Trump, Ted Cruz or Marco Rubio wins in November. However sensible this approach may be in theory, it looks more likely that at least the Republicans will choose not to settle, preferring to take the chance and battle it out in winner-take-all style. If either party manages to grab hold of both the Oval Office and the Senate in 2017,they’ll be freeto go with as conservative, or as liberal, a choice of aSupreme Court Justice as they please. Any other combination (Democrats in the White House and Republicans in Congress or vice-versa) will only put a resolution of this standoff even more out of reach.
The stage is set for a long and acrimonious political battle. This issue will energize voters of all stripes in 2016, and is likely to spill into the next administration. That it comes only days after rumors of a possible presidential run by former New York Mayor Bloomberg contributes to making the remainder of this campaign season even more explosive than it has been already. Bloomberg is said to be leaning toward entering the race, especially if Trump and Bernie Sanders continue to lead in their respective party’s primaries. He is reportedly aiming to make a final decision in the first week of March, to give himself enough time to register as a candidate in all 50 states and to get a proper political organization going on the ground.
By then, Republican and Democratic voters from Nevada to South Carolina, from Texas to Virginia, will have had their say. As a result, a clearer picture should emergeof whether this is really the year of the insurgents, Trump or Cruz for the GOP and Sanders for the Democrats. Or might the establishment make a comeback, in the person of Hillary Clinton on one side and of Rubio or Bush or Kasich on the other?In the meantime, Obama will have probably made his move with regard to Scalia’s successor. Combined, these two developments should signalthe direction things might be taking. We will learn how much more polarized this presidential race can get; if there is space for Bloomberg to jump into the fray, upending this campaign and possibly making history (no independent has ever even come close to the White House); and we will start getting a sense for what the next Supreme Court may look like, if Obama’s pick stands any chance at all. For example, Cruz has pledged in the past that he is “willing to spend whatever political capital is necessary” to make his Court as conservative as possible. If he were to get closer to clinching the Republican nomination in the next couple of weeks, that would tell us something about how a Democrat might want to challenge him in the general election.
At this point, the stakes couldn’t be higher.