How Antonin Scalia’s death reshapes the 2016 election

February 16, 2016
Supreme Court Justice Antonin Scalia testifies before a House Judiciary Commercial and Administrative Law Subcommittee hearing on “The Administrative Conference of the United States”  on Capitol Hill in Washington May 20, 2010.  REUTERS/Kevin Lamarque  (UNITED STATES - Tags: POLITICS)

Supreme Court Justice Antonin Scalia testifies before a House Judiciary Commercial and Administrative Law Subcommittee on Capitol Hill in Washington, May 20, 2010. REUTERS/Kevin Lamarque

The U.S. Supreme Court is supposed to be the solution to gridlock. But as the death of Associate Justice Antonin Scalia makes painfully apparent, gridlock is now overtaking the court.

When the political system threatens to break down in gridlock — as it did during the recount following the 2000 presidential election — the Supreme Court intervenes to resolve the issue. Many Americans disagreed with the 5-to-4 ruling that made George W. Bush the president. Miraculously, though, there were no mass protests, no riots, no violence. The U.S. Constitution is sovereign, and the Supreme Court is accepted as its voice.

Separation of powers in the United States is supposed to foster compromise and deal-making. But Tea Party Republicans reject compromise and deal-making as unprincipled. So we end up with stalemate on issue after issue. The Supreme Court has to break the stalemate — sometimes in favor of liberals (same-sex marriage, Obamacare) and sometimes in favor of conservatives (campaign finance, climate change). Often the vote has been by the closest possible margin: 5 to 4. Without Scalia, the court splits 4 to 4.

Senate Minority Leader Mitch McConnell (R-KY) (L) talks with Supreme Court Justice Antonin Scalia during the Inaugural Luncheon in Statuary Hall after U.S. President Barack Obama's ceremonial swearing-in at the U.S. Capitol on Capitol Hill in Washington, January 21, 2013.   REUTERS/Benjamin Myers (UNITED STATES  - Tags: POLITICS)

Senate Minority Leader Mitch McConnell (L) talks with Supreme Court Justice Antonin Scalia during the Inaugural Luncheon in Statuary Hall at the Capitol in Washington, January 21, 2013. REUTERS/Benjamin Myers

Now the United States faces gridlock over breaking that stalemate on the court. Republican Senate Majority Leader Mitch McConnell (R-Ky.) and the Republican candidates for president have made it clear: They will regard anyone President Barack Obama nominates to fill the vacancy on the court as illegitimate.

That’s wrong. Obama has said, “I plan to fulfill my constitutional responsibilities to nominate a successor in due time.” The Senate would be shirking its constitutional responsibility if it refuses to take up the nomination.

The response from Republicans: So what? “Delay, delay, delay,” the GOP nominee front-runner Donald Trump advised during the last Republican debate on Saturday. Republicans want to keep the seat open until next year, when a new president takes over. They expect the new president to be a Republican. They know it won’t be Obama.

“If there’s any move within the Senate to consider a confirmation this year,” warned former Republican Senator Jim DeMint, “I think you would see outright rebellion from all across America.” DeMint heads the Heritage Foundation, which under his leadership has become chief enforcer of conservative discipline.

If a Republican senator votes to confirm an Obama nominee — or votes even to allow a Senate vote on confirmation — the senator is virtually guaranteed a conservative primary opponent. If the senator refuses to confirm, however, then he or she becomes instantly vulnerable to the charge of obstructionism. That could be a serious problem for Republicans up for re-election in Obama states this year, including such blue states as Illinois, New Hampshire, Ohio, Pennsylvania and Wisconsin.

U.S. Supreme Court Justice Antonin Scalia (L) induces a laugh from Justice Clarence Thomas (R) as they depart following the Red Mass, a service to mark the beginning of this year's Supreme Court term, at the Cathedral of St. Matthew the Apostle in Washington October 5, 2014. The Red Mass is sponsored each year by the John Carroll Society, a Roman Catholic organization for professionals in law and business in Washington. REUTERS/Jonathan Ernst    (UNITED STATES - Tags: POLITICS CRIME LAW RELIGION)

Supreme Court Justice Antonin Scalia (L) with Justice Clarence Thomas (R) after a church service to mark the beginning of the court term, at the Cathedral of St. Matthew the Apostle in Washington, October 5, 2014. REUTERS/Jonathan Ernst

A Democratic official warned, “If McConnell stonewalls, we will empty the arsenal. We will make sure this is seen as the radical, unprecedented act of obstruction that it is.”

The Supreme Court issue instantly escalates the stakes in the 2016 presidential race. The next president could tip the ideological balance on the court. And thereby determine the resolution of the most high-octane conflicts in U.S. politics: immigration, climate change, abortion, affirmative action, campaign finance, Obamacare, religious rights.

Normally, the Supreme Court does not drive most Americans’ presidential votes. That is likely to change this year. “The fact that there is an immediate vacancy — and a vacancy that could tip the court’s ideological balance,” wrote Tom Goldstein, publisher of the leading Supreme Court blog, SCOTUSblog, “makes the future of the court much more concrete.”

The Supreme Court has the final say on deeply divisive social issues such as abortion, civil rights, same-sex marriage and immigration. These are basic identity issues for many Americans. They define the battle lines in the political civil war between Red and Blue America. The Supreme Court vacancy is likely to rally huge turnout on both sides. “I don’t think there’s a young person, a woman, a Democrat, independent or a diverse voter that will stay home,” one Democratic strategist said.

Nor is it likely that many older white men, religious Americans or conservatives will stay home when issues of basic identity are at stake. Not when a candidate like Senator Marco Rubio (R-Fla.) keeps repeating his sinister charge, “President Obama is undertaking a systematic effort to change this country.”

In last Tuesday’s New Hampshire primary, neither Democratic nor Republican voters were much concerned about electability. Only one in eight voters in either party said their top concern was winning in November. Both parties ended up voting for candidates whose electability in November is very much in doubt.

Senator Lindsey Graham (R-S.C.), a former Republican presidential candidate, called the vacancy on the Supreme Court “a wake-up call.” He warned his fellow Republicans, “You better nominate somebody who can get 270 electoral votes. Donald Trump can’t. Ted Cruz can’t.”

Democrats have to ask themselves the same question about Senator Bernie Sanders (I-Vt.). Do they dare to take chances when so much is at stake?

The Supreme Court vacancy puts social issues at the heart of the campaign. Social issues involve the basic instinctual drives of Red and Blue America. Sigmund Freud defined those drives in individuals as the “id”: “a cauldron full of seething excitations.” Bring up the Supreme Court and you get “seething excitations” from both Democrats and Republicans.

The 2016 election is shaping up as the Clash of the Ids.


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He was an evil man who believed we should all be slaves to the masters he served.

Posted by brotherkenny4 | Report as abusive

This is a sad time for his family and friends, and for them I am sorry.

But for America, this is a good day. He was a partisan right wing idealogue who never had any business on the high court to begin with.

Posted by Solidar | Report as abusive

Yet more threatened obstructionism on the part of the GOP. Will they ever learn?

I’d rather they take their toys and go home.

Posted by Dehumanist | Report as abusive

Quack Quack. ia-defends-cheney-trip/

Posted by Solidar | Report as abusive

I read 10 or so news articles every day. for my career i lived in washington and was involved politics full time.

this is the best article on any subject i have read this election cycle, the very best

Posted by tom0317 | Report as abusive

Interesting article. But the author is extremely ignorant and ill informed when she equates the problems of the nonestablishment Republican cnadidates with Bernie Sanders position in the Democratic Party.

The difference is that while Sanders resembles the conservative republicans in that he can only win an election by mobilizing the base because the center moderates might be repelled by his socialist label, this concern is largely balanced out or eliminated by the faf bigger problem presented as to Clinton’s electibility. Hillary Clinton is a walking time bomb who could destroy the Democratic Party for years to come if she wins the nomination and then gets indighted, or if the transcripts of her meetings with her Wall Street paymasters are leaked to the public.

There is no similar cloud hanging over the electibility of any GOP establishment candidate.

I am surprised by the sloppy journalism, Reuters, most of your reporters are a heck of a lot more intelligent than this one.

Posted by JeffHB | Report as abusive

Congress has the lowest rating in the history of the country because of stunts like the one republicans are pulling in regards to Obama’s up coming supreme court nominee. It’s time to vote all republicans out of office and make congress do the peoples work again.

Posted by Whipsplash | Report as abusive

Republicans apparently now believe a President’s term ends after 3 years.

Well too bad. Win next time. Go ahead an try running Trump in a general election. See if that helps you win. Haha. He’s a Sarah Palin with a boy wig.

Posted by Solidar | Report as abusive

Why do republicans hate the constitution?

Posted by Whipsplash | Report as abusive

Scalia did not pay for this stay at the “guest ranch.” And the owner was a person being sued in a case before the Supreme Court.

Scalia died dirty because he lived dirty.

Thoughts and prayers to his family.

Posted by Solidar | Report as abusive