Antonin Scalia and the future of the court

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Supreme Court Justice Antonin Scalia is a larger-than-life figure. His death was completely unexpected. The political fallout over his death, however, was totally predictable.

In the strongest terms Republicans are saying they will not accept any nominee from the current president. The Democrats are saying that of course President Obama will nominate a candidate, and duty requires the Senate to give serious consideration to whomever Obama nominates. If circumstances were reversed, Democrats and Republicans would undoubtedly alter their positions accordingly.

Could any other result have even been considered a possibility? Supreme Court nominations have become increasingly political over the past several decades. The stakes are especially high with this nomination.

All the talk had been that it was Supreme Court Justice Ruth Bader Ginsberg who would either die or retire. If that had in fact occurred, the fallout would not have been nearly so dramatic. It would have meant that a liberal judge would be replaced with another liberal judge and the 5-4 conservative majority would remain intact.

Instead, it is a conservative justice who is to be replaced, and not just any conservative justice, but the conservative force on the court. Scalia has essentially defined the conservative judicial direction for decades. To replace this justice with a liberal justice would send shockwaves through the conservative community.

The fear of a change in the direction of this court that could extend well into the future is palpable among conservatives. If a Democrat is elected in November the court will experience major changes in its composition. The opportunity to replace a number of aging justices could make the new court far more liberal than the current one.

There is perhaps a case to be made that propriety would require that Scalia be replaced with something of a like-minded justice. He is such a towering figure that his legacy should be continued at least somewhat by his replacement.

Yet when Justice Thurgood Marshall was replaced such deference was in short supply. Marshall, who was the first African American on the Supreme Court, was also a towering figure. He was a fighter for civil rights and is best known for his role in the Brown v. Board of Education decision that desegregated public schools.

The president and the Congress chose to continue Marshall's legacy on the court by extending the tradition of having an African American justice on the court. That justice turned out to be Clarence Thomas. No one could suggest that he remotely resembles the legacy established by Justice Thurgood Marshall.

So what is likely to happen? President Obama will select a nominee who is considered moderate and who is highly qualified to sit on the Supreme Court. It will be someone most Republicans could support under normal circumstances. Pressure will force Republicans to hold hearings and eventually allow a vote. That nominee will be rejected but perhaps by a smaller margin that most people expect.

I think there is one scenario in which the calculus could change and Obama's nominee could in fact be confirmed. If we get to late summer or early fall and the analysis is that the Republican presidential nominee is likely to lose to a Democrat by a wide margin, things could change. If it appears that a Democrat will be continuing in the White House, the Republicans may decide they would be better off accepting the Obama nominee. They will be concerned that a new Democratic president may well nominate a much more liberal nominee than President Obama is prepared to nominate at this time.

The passing of Justice Scalia has added a significant new dimension to the 2016 presidential election. It will be fascinating to see how it plays out.

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