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Why progressives might not want President Obama to name the next justice

Justice Scalia (R) and Justice Breyer.
Justice Scalia (R) and Justice Breyer.
Alex Wong/Getty Images

Justice Antonin Scalia's passing has prompted a lot of discussion about his role as a leader of the conservative bloc on the Supreme Court during the past 25 years. Indeed, Scalia was well known as a judicial conservative firebrand. However, he was also known for being a bit of a maverick on some issues.

For example, he was a fairly strong supporter of free speech rights. He recounted at least once that after his vote to support the right to burn the American flag, he received some criticism for his position. In addition, Scalia was known to often side with the more typically liberal members of the Court in cases involving search and seizure and other criminal defendant rights.

In research I have done with Benjamin Lauderdale of the London School of Economics and Political Science, we studied how the justices' voting varies across substantive areas of the law (see also here and here). We find there that those general impressions are confirmed by the data — Scalia was most likely to be one of the more moderate justices in cases involving criminal procedure and search and seizure, in particular.

That pattern is particularly important for progressives as they evaluate the person President Barack Obama might nominate and as they move through the current campaign season. Some well-known liberal justices have historically been more moderate on issues of criminal procedure.

To return to the example of search and seizure, Scalia often found himself voting with the more liberal members of the Court and against Justice Stephen Breyer — a typically more liberal justice — who in those cases sided with the more traditionally conservative justices. Examples of such cases include Kyllo v. United States (2005), Arizona v. Gant (2009), Florida v. Jardines (2013), Missouri v. McNeely (2013), Maryland v. King (2013), and Navarette v. California (2014).

Since 2000, the Supreme Court has decided 12 search and seizure cases by a vote margin of 5-4. So in as many as half of the divided search and seizure cases this century, a justice in the mold of Breyer, rather than Scalia, could have produced a more conservative outcome. Progressives should be particularly thoughtful about this issue as they contemplate the consequences of replacing Scalia on the Court.

These concerns could be particularly sharp if Obama is forced, by political pressure, to nominate a more moderate justice, who could make it through the confirmation process when Obama is politically weak and facing a recalcitrant Senate. Because he confronts a recalcitrant Senate, one strategy forward for Obama might be to choose a nominee who splits the Republican senators — trying to "peel off" enough votes from the GOP to side with his Democratic allies and get the nominee through the confirmation process. This kind of moderation might be particularly painful for progressives if it undermines the few areas where they have had some success in the Court during the past decade.

The issue here goes further than just how search and seizure cases will be decided in the future. Dana Milbank points out that the Supreme Court is more typically associated with social issues than with economic ones. The consequence is that turning the presidential election into a debate about the Supreme Court could be good for Democrats, who have an electoral advantage on those issues.

(This is ironic, given that the most frequently litigated laws before the Supreme Court include the Internal Revenue Code, the National Labor Relations Act, the Bankruptcy Code, and the Sherman Antitrust Act. Of course, the most litigated legal provisions also include the First, 14th, and Fourth Amendments.)

If this is correct — and some have argued it is not — then progressives might also be leery about hurrying through the nomination process. They may instead opt to drag out the debate through the rest of the campaign season to keep people's minds focused on the consequences those political issues might face with a conservative president.

So, to conclude, it seems progressives might benefit from keeping the current vacancy open. If a Democrat is elected in the fall, which has a better than ever chance of happening, then the nomination will come from someone with a current political mandate (and possibly even a Democratic majority in the Senate).

The consequence will be a less moderate justice, and less risk of moving the Court to the right on the few issues where Justice Scalia was relatively more moderate. And in the meantime, the Democrats could benefit from forcing social issues onto the agenda, where they have traditionally held a political advantage.

Tom Clark is the Asa Griggs Candler professor of political science at Emory University.