WashU Expert: Bargaining for moderate nominee might be Republicans’ best option

In the wake of the unexpected death of Supreme Court Justice Antonin Scalia, much speculation has arisen about who should be nominated to replace him, with Republicans vowing to block any nomination until after the November presidential election. That may not be the wisest course of action, according to a legal expert at Washington University in St. Louis.

Gregory Magarian
Magarian

“Both President Obama and the Senate Republican leadership will make strategic decisions about the vacancy against the backdrop of a bizarre and tumultuous presidential nominating campaign,” said Greg Magarian, professor of law and an expert on constitutional law and the Supreme Court. “Given the Republicans’ uncertain prospects of electoral victory in November, bargaining with President Obama for a moderate nominee might be their safest course.”

The Constitution gives the president the power to appoint justices with the advice and consent of the Senate, and the Senate has the power to stall presidential nominations. But obstructing government functions usually comes at a political cost, as recent government shutdowns have shown, Magarian said, adding that Scalia’s absence has immediate consequences.

“Justice Scalia’s sudden passing is close to a unique event in our history. The stakes of this showdown for the court, and all its crucial effects on civic life, could not be higher,” he said. “For a justice to pass away less than a year before a presidential election, with the court’s ideological balance at stake, in circumstances of both electoral and judicial polarization is a dizzying event.

“For any case in which he would have been part of a 5-4 majority — virtually any contentious case in which the Court’s conservative wing had been set to prevail — that majority is gone,” he said. “This term the court is considering politically charged cases about abortion, voting districts, affirmative action, public employee unions, religious claims against legal obligations and immigration. Only in the affirmative action case, where liberal Justice Elena Kagan is recused, does any real hope of victory remain for the conservatives. Any case that splits the Court 4-4 will either be set for rehearing or yield a judgment, without precedential effect, that simply affirms the lower court’s decision.

“If a Democratic president chooses a liberal to replace Justice Scalia, liberals will control the court for the first time since 1969,” he said. “The potential will arise for profound changes in the law of campaign finance, gun regulation, voting rights and numerous other subjects that affect people’s lives. In addition, the ideological shift would place Chief Justice John Roberts in the minority on his own court, a dynamic with no recent precedent.”

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