The unexpected death of Justice Scalia throws a wrench into an already volatile 2016 election and what happens next will largely depend on a variety of factors and political calculations made by President Obama and the Republican controlled Senate.
Here are some scenarios that can happen as the President and Senate battle it out over who will replace the late justice.
Obama nominates someone that puts Republicans in a bind
If President Obama wants to play hard ball then he will nominate someone that will energize the Democratic base while at the same time shining a light on the cultural differences between the two parties. Think of all the pressure Republicans will face if they refuse to hold a vote on an extremely qualified minority and the potential backlash that may bring on moderate Republican Senators facing reelection in blue or swing states.
Republican Senators in traditionally blue or swing states like Illinois (Mark Kirk), Wisconsin (Ron Johnson), Pennsylvania (Pat Toomey), and New Hampshire (Kelly Ayotte) might be more than willing cross party lines and approve whoever Obama nominates in order to save their seats.
I wouldn’t be surprised if President Obama takes this route in an attempt to “divide and conquer” Senate Republicans. They are defending 24 seats to the Democrats 10 and there is a very real possibility that even more vulnerable Republicans would be willing to cross party lines and approve the nomination if they see their poll numbers dropping at home..
Obama makes a recess appointment
If the President were going to use his Executive powers to place someone on the Supreme Court then he will need to do so in the next few days. Article I, Section 5 of the Constitution reads “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”
Both Houses will not be back in session until February 23, so this gives President Obama one week to place an individual on the bench without advice and consent of the Senate. This option is not without precedent. William J. Brennan, Jr. was appointed during a Congressional recess and went on to become a long serving progressive justice until his retirement in 1990.
This would be an extremely risky move and could wind up causing far more harm than good. A recess appointment would only last until the end of this session of Congress in January of 2017 and there is no guarantee the next Congress or President will keep them on the bench. It’s also risky because it could very likely rile up the Republican base and turn off moderate minded independents who don’t like Senate obstructionism, but also don’t like the President being seen as going around the Congress to get something he wants.
Obama nominates a moderate candidate and Republicans call his bluff
President Obama may come to the conclusion that Republicans won’t confirm anyone he nominates, so he might decide to nominate an independent minded person that doesn’t fall squarely into any ideological camp and dare Republicans to derail the nomination. The Republicans may recognize they have the potential to replace Scalia with a moderate conservative and call Obama’s bluff.
This route has the potential to go either way. A moderate replacement for Scalia may not fit the mold of Ruth Bader Ginsberg, but they will certainly not be as conservative as Scalia. This may be enough to make Democrats accept the nomination and excite the base for November. However, it could backfire if the replacement turns out to be more conservative than originally thought. It would be a risky move, but one that would undoubtedly put someone less conservative than Justice Scalia on the bench.
A placeholder is put on the bench
This scenario can play out two ways. President Obama can place someone on the bench while Congress is in recess, but that justice would have to step down when the next Congress convenes in January 2017. Or President Obama and the Senate agree to confirm someone with universal appeal like retired justice Sandra Day O’Connor.
Justice O’Connor was widely respected on both sides of the aisles and is currently 85 years old. She is a moderate who wouldn’t dramatically swing the ideological bent of the court. This would allow the court to keep functioning and would also meet the Republican demand that the next President get to choose the direction of the court.
Both sides make concessions to get a nominee confirmed
Democrats and Republicans have things they really want and both sides have a lot to lose by not getting them. Senate Democrats and President Obama may be able to swallow a bitter pill and give Republicans some major tax and entitlement reforms if the Republicans allow an up or down vote on the person President Obama nominates.
Senate Republicans would then be able to claim victory on long sought after pieces of legislation and Democrats would have a majority in the Supreme Court for the first time since the 1970’s.
How a deal plays out with the base of either party is a legitimate toss-up. If the Democrats give major concessions to things that liberals care dearly about and stay home this November in protest then the next President may be able to shift the balance back to Republicans if a left leaning justice steps down or dies.
The same can be said about Republicans. The Republican base may revolt because their leaders didn’t play hard ball and wait until after the next President is sworn in.
Obama nominates someone he knows won’t get confirmed before the election
This is a highly unlikely scenario, but President Obama may nominate someone he knows wouldn’t get confirmed before the election and then try to push them through after the election with the thought being that a demoralized Republican Senate after losing the Senate and White House will finally be willing to confirm them.
This would be highly unusual for the President and it would be a huge risk. Everything would have to go perfectly well in November for this to work. And if Republicans take back the White House or retain the Senate then this may very well end up backfiring.
These are the scenarios that may happen during the final year of President Obama’s presidency. If this isn’t resolved before President Obama leaves office in January 2017 then it will be up to the next President and Congress to get it sorted out. And with the current state of politics in Washington, that may wind up being a very long time.