:format(webp)/cdn.vox-cdn.com/uploads/chorus_image/image/48805555/91667763.0.jpg)
Justice Antonin Scalia's death is a test for the American political system — a test it's unlikely to pass.
The test is simple. Can divided government actually govern, given today's more polarized parties? In the past, it could. In 1988, a presidential election year, a Democratic Senate unanimously approved President Ronald Reagan's nomination of Anthony Kennedy to the Supreme Court. The Senate wasn't passive; it had previously rejected Reagan's initial nominee, Robert Bork, and Reagan's second choice, Douglas Ginsburg, dropped out of the running. However, it ultimately did its job — even amidst an election and divided party control of the government.
But moments after reports first filtered out of Scalia's death, and with no knowledge of whom President Obama planned to name as Scalia's replacement, senior Republicans said they wouldn't even consider an appointment from Obama, despite the fact that he has almost a year left in his presidency.
Ted Cruz was first to voice this opinion, but it was Senate Majority Leader Mitch McConnell's statement that carried the most consequence. "The American people should have a voice in the selection of their next Supreme Court Justice," he said. "Therefore, this vacancy should not be filled until we have a new president."
The American people, of course, already did have a voice in the selection of Scalia's replacement. They reelected Barack Obama to office in 2012. But they also made Mitch McConnell majority leader in 2014.
These elections, carried out in different years, midst different electorates, and using different electoral systems, are equally valid. Obama and McConnell's claims of democratic legitimacy are simultaneously correct. The American people speak with a divided voice, and our system carries no mechanism for resolving their confusion.
This is why political systems like ours rarely survive. Indeed, as the late sociologist Juan Linz wrote, "Aside from the United States, only Chile has managed a century and a half of relatively undisturbed constitutional continuity under presidential government — but Chilean democracy broke down in the 1970s."
The reason for the American political system's strength, Linz argued, was that our parties were unusual in that they lacked clear ideological distinction — both the Democratic and Republican parties contained both conservatives and liberals. For a system that required compromise to function, that made compromise unusually easy to find.
But in recent decades our political parties have become sharply distinct, with liberals clustered in the Democratic Party and conservatives clustered in the Republican Party. The result is a level of party polarization American politics simply hasn't seen before.
The great unanswered question of American politics in this era is whether our divided political system can function in times of stress. Already, there have been worrying signs. Disagreement between a Democratic president and a Republican House nearly forced the United States to default on its debt in 2011, and it shut down the government in 2013.
Now we see another form of stress — how does a divided political system, where the disagreements are sharper than ever, fill a Supreme Court nomination?
As of now, the answer Republicans are giving is simple: It doesn't. Their hope is that they can keep Obama from nominating a justice, and then they will win the presidency next year and simply make the nomination themselves, no compromise necessary.
But it's a strange precedent to say that amidst divided government, a president's final year in office — which means two of his eight years, because the precedent could apply to both his fourth and eighth years — is a year in which hard decisions can't be made and crucial vacancies can't be filled. And what if Hillary Clinton wins the presidency in 2016 but Republicans keep the Senate? What do Republicans do then?
This isn't to predict constitutional collapse over a Supreme Court vacancy (though today is a good day to read Matt Yglesias's essay on these underlying forces and how they could eventually lead to a serious crisis). But if American politics cannot fill a Supreme Court vacancy amidst divided government in any of the 25 percent of years that are presidential election years, then that is proof that our system is deteriorating in its capacity to govern amidst divided party control — that the space for effective governance is narrowing because of party polarization.
Divided government is a common occurrence in American politics. It didn't used to signal disaster for the system's ability to solve problems. If it does so now, then the country will, over time, pay a serious price for a political system that no longer fits its political parties.
