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3Qs: What’s next in the partisan fight to replace Scalia?

The death of U.S. Supreme Court Jus­tice Antonin Scalia has triggered a political firestorm, with Republican and Democratic leaders on Capitol Hill clashing over whether President Barack Obama should nominate a replacement to fill Scalia’s seat on the court.Daniel Medwed

Obama intends to fulfill his constitutional duty to nominate Scalia’s successor, while Republican leaders say the next president should select Scalia’s replacement and have vowed to block Obama’s pick.

How will this largely partisan battle play out? We asked Northeastern University law professor Daniel Medwed.

According to a CNN report, Senate Republicans might choose to deny Obama’s Supreme Court nominee a hearing. What are the pros and cons of this approach?

I imagine Senate Republicans see both legal and political benefits. First, consider the long-term legal implications of this nomination. Prior to Justice Scalia’s death, the nine-member court generally split along ideological lines with four staunch conservatives—Justices Alito, Roberts, Thomas, and Scalia—on one side and four steadfast liberals—Justices Breyer, Ginsburg, Kagan, and Sotomayor—on the other. The configurations occasionally shifted in particular cases, but these basic alignments surfaced time and time again. As a result, Justice Kennedy represented the crucial deciding vote in many key cases in recent years, including last term’s same-sex marriage opinion.

If the Democrats nominated Justice Scalia’s successor and that person were confirmed by the Senate, then the balance of power in the court would likely shift to the left. Liberals would no longer need to tailor their draft opinions to woo Justice Kennedy into the fold as a necessary fifth vote. Therefore, Republican Senators concerned about a leftward-leaning Court have powerful motivations to play “stall ball” and see if a Republican wins the White House in November.

Second, this tactic could reap political benefits with the Republican base, motivating conservative voters to donate to campaigns and go to the voting booth. A new NBC News/Wall Street Journal poll found that Americans are divided along party lines when it comes to whether the Senate should vote on Obama’s nominee. Eighty-one percent of Republicans polled want to leave the position vacant. Independents are split—43 percent this year, 42 percent next year with a new president in the fold.

As for the drawbacks of this strategy for Senate Republicans, it will surely result in a protracted floor fight that could antagonize many moderate Republicans and independents, even those who at the moment are eager for a showdown. And it could spur Democrats to head to the polls themselves in unprecedented numbers.

Retired Supreme Court Justice Sandra Day O’Connor, who was nominated by President Ronald Reagan, said that Obama should name Scalia’s replacement. “I don’t agree [with Republicans],” O’Connor said. “We need somebody in there to do the job and just get on with it.” In your view, will O’Connor’s opinion hold sway over Senate Republicans, particularly those who might be under pressure to call for a confirmation vote?

That’s a fascinating question. Justice O’Connor had a political background prior to becoming a jurist, serving as an Arizona state legislator earlier in her career. It’s possible her views may carry some clout with Republican senators in states where the electorate is moderate: more purple than red. But, frankly, I suspect that traditional political calculations, more than anything a former Justice declares, will determine the individual choices of those senators. The politics are complicated for Republican Senators from those states. If they try to block the nominee, they could alienate voters at home; but if they break ranks from the Republican majority, there could be severe consequences within the Senate in terms of their own legislative initiatives, committee assignments, and so on.

A New York Times report noted that “The scenario that the left would most favor and the right most fears would be the selection of a barrier-breaking nominee who could spur liberal support and turnout in November.” From your perspective, how much of an effect could Obama’s pick have on the results of the 2016 presidential election?

I’m not entirely sure. On the one hand, nominating a person with unvarnished lefty credentials could certainly spur liberal support and help with turnout this fall, especially in the face of vigorous Republican delay tactics in the Senate. On the other hand, it could turn off parts of the Democratic coalition, independents, and even some moderate Republicans otherwise open to jumping sides. Nominating a somewhat centrist candidate might be the end result. It would make any Republican obstinacy seem all the more unwarranted—and motivate fence-sitters to vote for the Democratic candidate this fall.


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