With the passing of Supreme Court Justice Antonin Scalia, the political world has been thrown into a frenzy. There is no doubt that Scalia’s influence on legal thinking has been profound – in two ways. First, he was most famous for insisting on deciding cases before the Court based upon interpreting according to the original intent of the Constitution. Second, he was a leader in the charge by conservatives to rule conservatively on cases before him – from gun rights, to social issues, to business and labor issues.
These two legacies are contradictory,of course, because you could easily conclude that by relying on original intent you would not end up with either conservative or liberal results on the whole. But, Scalia and the other reliable conservative votes on the bench advertised themselves as jurists sworn not to legislate from the bench, but their actions have been pretty consistently politically predictable. Their claims of not legislating from the bench simply do not ring true.
Should the Senate confirm a new Justice to replace Scalia? Of course. The voting public has voted already on who is supposed to nominate a Justice – Obama won two consecutive elections, fairly handily as a matter of fact. So, there is no excuse for him to avoid his constitutional obligation to nominate a replacement.
Will the Senate confirm a new Justice to replace Scalia? Of course not. Republicans have been relying on Scalia, and his spot on the court, as a reliable judiciary arm of the conservative movement, and they clearly have no intention of letting that seat become liberal.
Will Republican obstructionism hurt the Republicans? Yes, I believe it will hurt them in this election year, and hurt them pretty badly. It will be easy for the President to nominate a center-left judge to replace Scalia who has already been easily approved of by the Senate in earlier confirmation hearings for a lower court. For the Republicans to simply refuse to consider such a person, or to do their best to demonize that person for headline news stories all the way to the election will make them look really ridiculously partisan, obstructionist, petty, unwilling to play fair, and incapable of the trust of the American voters.
The Republican Party could well go down on the sinking ship of Republican Senate ideological warfare.
It will certainly not be an uneventful political year.