The Republicans’ Gambit

Following the death of Supreme Court Justice Antonin Scalia, notable conservatives have pounced on the opportunity to gain publicity by pushing for the Senate to wreak havoc by delaying the appointing of a new Justice. The next president will not hold office for 11 more months, and many, many contentious cases are sure to be heard between now and then. The death of Scalia divides the court evenly between conservatives and liberals, meaning that if a new Justice is not named, deadlocked cases will pile up. Conservatives hope that this will prevent court decisions made that favor liberals and give conservatives an opportunity to gain control of the most powerful court in the nation. In reality, while this would give conservatives a shot at holding a slim majority in the court, it would also keep rulings made by the largely liberal lower courts valid, ultimately aiding liberals. In delaying the appointment of a new Justice, all conservatives would do is degrade the prestige of the Supreme Court by making their rulings effectively useless, waste time and preserve the Judicial power of liberals.Conservatives are attempting to use the stalling of an appointment to show voters in this election year that they are tough. They would rather have government not run effectively than be run by liberals. This gambit has been attempted before, by Ted Cruz when he shut down the Federal government in a futile attempt to stall the inevitable. Rather than giving Republicans a boost, all the shutdown did was increase public frustration with government. Ultimately the liberals won out, a circumstance which is extremely possible in this situation. There is no legal justification as to why the President should for whatever reason not appoint a new Justice. In fact, it is President Obama’s constitutional duty to appoint a new Justice in a timely manner. By stalling an appointment, the Senate would be acting in a purely partisan way, not to serve any good but simply to be obnoxious, and so public perception of the stalling would be the same as that of the shutdown. While conservative senators may see themselves as crusaders, all they would really be doing is wasting time.A deadlocked Supreme Court could actually advantage the Democrats. The outcome of cases brought to a tied Supreme Court would likely advantage liberals in a similar manner to the outcomes of those brought to a liberal court. If the Supreme Court ties on a ruling, those made by lower courts would remain valid because no official decision would have been made by the higher court. District Appellate Courts will suddenly have more binding power, as even if their rulings are moved on to the Supreme Court, no action would occur. This would preserve the lower court’s decisions. Most of the U.S. District Appellate Courts are controlled by liberal Justices due to appointments made by Obama. They would undoubtedly rule in ways that favor the agenda of the liberal presidency. Obama could take advantage of the deadlock to push for rulings to be made in lower courts that would rule in his favor, effectively circumventing the Supreme Court.Perhaps a Republican will win the election later on this year, and perhaps the Senate will successfully delay the appointment of a new Justice until then. Even if that’s the case, the at least eleven months of deadlock that would occur between now and the appointment is more than enough time for Obama to enact change in many contentious issues. Cases that remain on the docket for this year include rulings on abortion, immigration, affirmative action and environmental regulation. Decisions on these cases will be made this year. Regardless of what happens the Liberals will be able to push their agenda in the coming months, either with control of the Supreme Court or with control of lower courts. If the Republicans don’t win the election but still delay the appointment, the new Democratic President will obviously appoint a liberal Justice and the Republicans will have wasted time, damaged the power of the Supreme Court, and given the Liberals a golden window of opportunity with no return. Stalling the appointment of a Justice is ultimately a foolish waste of time, with only a small chance for a payback significant enough to justify the cost.