While I don’t generally agree with most of Justice Antonin Scalia’s rulings, the brutal and clever quips displayed in his opinions and dissents made him my favorite judge. I’ll miss his humor, but not his strict textualist interpretation of the constitution.
Unfortunately, Scalia passed last Saturday, Feb. 13, at the age of 79, and almost as soon as his heart stopped beating, both parties began to panic and plan for the ensuing appointment battle. Per tradition and the constitution, Obama will pick an individual to appear before the Republican-controlled Senate Judiciary Committee and the larger body, who ultimately confirms or denies nominations. Predictably, in the age of purely partisan politics and anti-Obama rhetoric, getting their go-ahead is going to be a tricky task.
A third appointment by Obama, argue many politicos, would be the most significant ideological shift for the bench since 1991, when Thurgood Marshall retired and was succeeded by Justice Clarence Thomas. Take into consideration that the 2016 general elections are just around the corner and that 24 Senate seats are up for re-election in November, and you’ll start to see why Republicans have threatened to filibuster the move. Politically, the stakes are enormous but the potential impact on American life and national law are even more monumental.
Before Scalia’s death, the court was split 5-4 in favor of conservative justices, but now with a vacancy, all that’s up for grabs. If Obama somehow manages to appoint a left-leaning justice, many 5-4 decisions such as Citizens United v. FEC, Columbia v. Heller, County v. Holder, Gossip v. Gross, Burwell v. Hobby Lobby and Town of Greece v. Galloway may be overturned. On the surface, that list of names might mean little if anything to many of you, but in plain English, it could mark reversals in some of the most contentious rulings in recent memory.
Respectively, in regards to the aforementioned decisions, this could change the Supreme Court of the United States’ (SCOTUS) rulings on the role and legality of corporate money in politics, second amendment rights, key provisions of the Voting Rights Act, lethal injection protocols, religious exemptions to contraception provisions for companies and prayer inside town hall meetings.
Looking further into the future, a liberal majority will certainly mean more liberal rulings on a wide array of socially-important topics. In other words, if you’re a polarized liberal, this would be a pure blessing from the omnipotent man in the clouds, and if you’re a polarized conservative, it would be a curse from the clever gremlin swimming in flames.
With that in mind, I highly doubt the Republican-controlled Senate will appoint anyone until the end of the general election, which, depending on who wins, could be a major miscalculation.
On one hand, a Republican — hopefully the fantastically theatrical Trump — could win, in which case, the Senate will have made the right decision. However, if a Democrat wins, all the time and energy spent fighting the process will have been for nothing. Even more concerning for Republicans is if the political apocalypse transpires in 2016 and Bernie Saunders wins (which appears more likely by the day), they will wish for a time machine to go back and appoint anyone Obama had proposed. Add a possibility of losing the Senate due to the appearance of contributing and/or causing further dysfunction in Washington — something the entire country is sick of — and that game plan could backfire disastrously.
In my opinion, Obama will likely select a relatively moderate judge in the hopes that they’ll be palatable to the Senate, and therefore cement another brick into his legacy.
My advice to the Republicans? Hold out till he suggests a judge that’ll occasionally rule with the conservative bloc if you want, but appoint somebody.
The doctrine of stare decisis (which cautions against overturning settled law) and the fact that the court must wait for a new case to review an already-settled question probably mean changes would inch along at maple-syrup speed. Besides, Ruth Bader Ginsburg is getting up there in the age department — so there’ll be another chance to upset the court in the not-so-far-off future.
The cost benefit analysis here is simple and should be enough to inform anyone what the strategically sound course of action is. If Republicans don’t realize that fact, Democrats could land a political hay-maker and rock Republican rabble-rousers.
Collegian Columnist Paul Hazelton can be reached at firstname.lastname@example.org or on Twitter @HazeltonPaul.