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The Supreme Court vacancy makes the next year in politics even wilder

Six thoughts on what the future holds.

Pool/Getty Images

A few thoughts about the implications of Saturday's shocking news that Supreme Court Justice Antonin Scalia has passed away, leaving the Court with only eight members:

1) It is all right to talk about the political implications right now

I hope that on a personal level, people show respect for Scalia's family. It is very sudden, and I am deeply sympathetic to their loss. However, especially if it is about the future, and not a gratuitous criticism of Scalia personally, there is nothing wrong with people discussing the political implications of this. If we didn't want people discussing the political consequences of deaths like this, we should not have a system of lifetime appointments.

With the system we have, discussing the implications when a justice dies in office is inevitable and appropriate. I find few things more elitist than the notion that we should never discuss the human implications of policies made by Congress, the presidency, or the Supreme Court. How dare the common folk think about the implications of Supreme Court membership for their right to unionize, control their own reproduction, etc.? Don't they know that Washington politics is all just a game where proper courtly manners are the most important thing?

2) This will no longer be a hugely eventful Supreme Court term

This was supposed to be a huge Supreme Court term. The Court accepted cases on public employee unions, abortion, climate change, equal-population legislative districting, affirmative action, contraception under Obamacare, and many other hot-button topics. In many of these cases, it looked like the Court was headed toward 5-4 conservative decisions, with the five Republic appointees voting together. Now, all cases that would have gone that way will be deadlocked at 4-4, which means the case sets no national precedent and the ruling of the lower court stands. Public employees will still have the right to unionize, legislative districts will still be required to have equal populations, and the Environmental Protection Agency  (assuming the Democratic-leaning DC Circuit Appeals Court rules in its favor) will continue implementing its climate-change-fighting Clean Power Plan for at least a year and a half.

If Anthony Kennedy decides to side with the Democrats in any of these cases, then there still could be liberal victories by 5-3 margins. But the probability of conservative landmark victories in these cases is almost nil, because none of the four Democrats show much inclination to defect.

The one exception is the case where the Court is reconsidering the constitutionality of public university affirmative action programs (Fisher v. University of Texas). Justice Elena Kagan has recused herself. If the Republican appointees stick together, they could strike down affirmative action by a 4-3 vote. That recusal didn't seem very consequential when it looked like there were five firm Republican votes to kill affirmative action. But now it could have huge significance.

3) Obama's optimal strategy depends on whether Senate Republicans can be won over

Obama has now issued a statement that he intends to make a nomination. He will likely want someone young. Anyone to the left of Justice Anthony Kennedy would move the Court's median voter to the left, possibly substantially. If Obama gets a centrist (but more liberal than Kennedy) candidate confirmed, that person would be the new median voter (replacing Kennedy). If the new justice is to the left of Kagan, that would make Kagan the new median voter.  So Obama has an incentive to try to get a nominee confirmed, even if his probability of success is less than 50 percent.

Two-dimensional ideology estimates of current Supreme Court Justices and President Obama. Source: Data from Michael Bailey. Figure created by David Cottrell and Charles Shipan,

One-dimensional ideology estimates of current Supreme Court Justices and President Obama. (Data from Michael Bailey. Figure created by David Cottrell and Charles Shipan)

Obama's best strategy depends on whether there is any hope of wining over Senate Republicans. If Obama thinks the Senate could be convinced to confirm one of his nominees as long as he nominated a moderate Democrat, then he might pick someone like Eighth Circuit Appeals Court Judge Jane Kelly or DC Circuit Appeals Court Judge Sri Srinivasan. Both are recent Obama nominees who were confirmed unanimously and are well-liked by Senate Republicans.

On the other hand, if it is clear that the Senate will not even grant a floor vote to any Obama nominee, then his best strategy would be to nominate someone who is still highly qualified, but not designed to appeal to Senate Republicans. Instead, he could choose a nominee who might increase the Democrats' chances of winning the fall presidential election. Obama might pick Ninth Circuit Appeals Court Judge Paul Watford, if he worries that African Americans won't be as energized this year as they were in 2008 and 2012. Perhaps a fight over a potential new African-American Supreme Court justice would help energize that community.

Or perhaps Obama will look toward Florida. It is almost impossible for a Republican nominee in this era to win the Electoral College without winning Florida, a state with a steadily increasing Latino population. Obama could nominate 11th Circuit Appeals Court Judge Adalberto Jordan. Jordan was born in Havana, Cuba, and immigrated with his parents. He attended the University of Miami and its law school, and currently lives in Miami. Obama could pressure Republicans by forcing them to spend the entire year blocking a Hispanic Floridian from getting to the Court, hoping that they would cave and confirm him, or that it would help a Democrat win the presidency, or possibly both.

4) If the court stays 4-4 for a while, liberals are in a strong position

In cases where there is a 4-4 split vote at the Supreme Court, the lower court ruling stands. It is treated legally as if the Supreme Court had never taken the case at all. So, if there is an extended period without a ninth member, lower courts, especially the District Appeals Courts, which are the final points of appeal before the Supreme Court, could be hugely consequential.

After seven years in office (and the Democrats' abolition of the filibuster on judges in 2013), Obama has appointed enough District Appeals Court judges that Democrats hold a majority in most districts. Liberal decisions of those appeals courts would stand if the Supreme Court were deadlocked.

One of the districts where the Democrats now have a majority is the DC Circuit, where they have a 7-4 advantage. The DC Circuit has jurisdiction over many executive branch actions, including (as mentioned above) the EPA's air pollution regulations to fight climate change, which are now likely to stand unless a Republican wins the White House this year.

5)  Wild scenarios are possible

There are a series of historical examples of Supreme Court vacancies in presidential election years, but most of these have been filled without a huge Senate battle. What is unusual is a sudden Supreme Court vacancy occurring in an election year in a highly polarized party system like we have now. This could lead to the rare circumstance of an extended period where only eight justices sit on the Court. Because this is new territory, several wild scenarios are possible. None of these are likely individually. But the possibility of at least one previously unthinkable thing happening is substantial. I won't list all the possibilities, just my two favorites.

First, there is a possibility that at some point a president will use a recess appointment, allowing a justice to serve without confirmation until the end of that congressional session. Obama could have made a recess appointment this week, but he has already announced that he won't. Yet if a vacancy remains, a president could make a recess appointment anytime the Senate is in recess for more than three days without holding perfunctory sessions. One could imagine, if the Senate refuses to even hold a hearing on his nominee, Obama making a recess appointment to serve until a permanent justice is conformed or the end of the next congressional session in December 2017. One could also imagine a recess appointment being used if the seat is still vacant when the next president comes into office. If a Democrat wins the fall presidential election but faces a Republican Senate, or a Republican wins the presidency and faces a Democratic Senate, the president might try to recess-appoint a justice to serve until a nominee is confirmed or the next congressional term ends in December 2018.

If the president names a formidable judicial mind, but with a strong ideology, that could pressure the Senate to approve a more moderate permanent replacement. For instance, President Obama or a future President Hillary Clinton could recess appoint Stanford law professor and liberal legal giant Pamela Karlan to serve until a permanent Democratic justice is confirmed.

But my favorite possible wild scenario was suggested on Facebook by my friend Matt Glassman. Imagine that the Republican Senate blocks confirmation of any Obama nominee all this year. Given how favorable the Senate map is for Democrats this year, it is a real possibility that Democrats could lose a very close presidential election while winning control of the Senate.

If that happens, there is a period between January 3 (when the new Congress starts) and January 20 (when the new president is sworn in), when a new Democratic Senate could push through an Obama Supreme Court nominee. This would ensure that the vacancy was not left to a new Republican president. It would obviously require abolishing the filibuster on Supreme Court nominees, but that would be fairly easy to do under the same procedures that the filibuster on other judicial nominees was abolished in 2013.

6)  As usual, everything is in the hands of Janet Yellen and the Fed

Scalia's sudden death and the 4-4 partisan deadlock it creates reduces the importance of this Supreme Court term, while adding even more significance to the outcome of the fall presidential election. The most important thing that we know predicts presidential election outcomes is economic growth during the election year. Right now, economic growth is decent, but not fast enough to ensure that Democrats will hold the White House comfortably. Adding to the uncertainty, the Federal Reserve has recently begun pulling back the measures it took to prop up the economy after the 2008 financial crises. If tighter fiscal policy from the Fed slows growth, a Republican presidential victory in November will become likely. The power to possibly fill this Supreme Court vacancy and/or several others in the near future hangs in the balance.

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