Muftic: Impact of Scalia’s death: temporary legal chaos and partisan strategies |

Muftic: Impact of Scalia’s death: temporary legal chaos and partisan strategies

Felicia Muftic
My View
Felicia Muftic
Courtesy Photo |

The unexpected death of conservative Justice Antonin Scalia moves the campaign focus to replacement because the issues before the Supreme Court involve some very contentious and divisive ones. Court decisions currently break 5 to 4, favoring conservatives, but not always. If anything, control of the White House that nominates and the Senate that confirms nominees will now take on immediate urgency as the stakes, the ideological tilt of the Court, just became higher. The likely outcome for the near future is chaos in interpretation of laws and a greater emphasis on partisan strategic thinking in the race to the White House .

The impact of the GOP winning the White House and/or keeping the Senate majority would continue the tilt for years to the right on critical issues now before the Court, from women’s access to abortion, climate change, voting and equal rights, affirmative action and immigration. The Supreme Court’s decisions influence public policy far beyond presidential terms or flux in Congressional makeup.

GOP’s announced intention is to block in the Senate any nomination President Obama offers, regardless of qualifications or degree of ideological moderation. The GOP strategy is to delay confirmation until they win the White House and the Senate to put their conservative nominee onto the Court’s bench. The GOP majority Senate has the votes to delay the confirmation process. In order to get confirmation before the swearing in of a new President in January 2017, President Obama will need 14 Republican votes in the Senate, highly unlikely in Washington’s extreme partisan election year climate.

Leaving the Court seat vacant until after the new president is sworn in and appointment is nominated and confirmed could likely mean four to four tie votes on contentious issues which would result in letting the lower federal court rulings stand. Most issues currently before the Court concern decisions by conservative dominated lower courts. Except for the issue of public employee unions, a Court tie vote would favor the conservative agenda.

Temporary chaos is possible, since some other lower courts in some districts have had decisions that conflict with conservative dominated courts. Laws could be enforced unevenly in the country on a court district by district, appeals court basis and we could expect a flurry of challenges being filed in lower Federal courts seeking clarification.

If the confirmation is delayed by GOP tactics in the Senate, then the risk for Republicans is that they could lose the race to the White House or see Democratic coattails tilt the Senate to Democrats. They will have lost their chance to replace ultra conservative Scalia with an equally conservative ideologue and the Court would tilt to the left of center on issues dear to conservatives.

The flip side is that if the Democrats persist in nominating a candidate who turns off the middle of the roaders and lose the White House and/or Senate, the court would continue to tilt conservative.

The wrong presidential nominee could harm either party’s control of the Senate. Coat tails count. In Colorado, the GOP will challenge Democratic incumbent Senator Michael Bennet. An extremely anti immigrant presidential nominee could cause an increase in the turnout of the swing vote in Colorado, Hispanics, with the outcome helping Bennet.

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