By David Keptsi
With the passing of Justice Antonin Scalia, a vacancy has been left within the supreme court. Why should we care? Mainly because until a new justice is appointed, the 5-4 conservative majority that Republicans used to possess is now gone. The balance of judges is now even, which bodes poorly for both Democrats and Republicans alike.
A majority opinion is essential for the passing of any legislation that may be interpreted as unconstitutional (and there is surprisingly quite a bit). Democrats want to fill the vacancy as soon as possible with a liberal justice in order to gain them a majority in the court, which would become particularly impactful considering the fact that Supreme Court justices don’t have any term limits. Republicans understandably want to delay nomination of a new judge until Obama is safely out of office and Hillary Clinton loses her party the election with her almost France-esque talent of being defeated. As of now, the Republicans may seem to have the advantage as they hold a senate majority and will be able to consistently block any nominations made for quite some time. However, Obama has on his end a 17 day window from January 3rd to January 20th, 2017. This is because on the 3rd a new congress must convene while January 20th is the last day of Barack Obama’s tenure as president. If, in the upcoming congressional elections, Democrats are able to retake a senate majority, Obama will be able to easily nominate and confirm a new, liberal judge before he leaves office, rendering months of Republican filibustering useless.
It is important to note that whatever insults the two parties throw at each other during this political confrontation, both sides have attempted to gain a judicial majority during election years before. In 1912, Republican William Taft nominated Mahlon Pitney who was shortly confirmed by a Republican senate. In 1916, President Woodrow Wilson had two Justices nominated and confirmed by a Democratic senate. In 1932, Republican Herbert Hoover nominated Benjamin Cardozo. In 1940, Democrat Franklin Roosevelt nominated Frank Murphy. As shown, such actions were certainly not uncommon and even the great Republican Messiah Ronald Reagan was guilty of doing so when he nominated Justice Anthony Kennedy during an election year(oddly enough, he was confirmed by a Democrat controlled senate, perhaps indicating a more bipartisan inclined culture at the time). Ultimately, there isn’t really a tradition of holding off on nominations during an election year as some may claim.
The truth is that both parties have attempted to stack the cards in their favor before. And while there may not necessarily be much of an ideological issue with this situation as both parties are looking out for their constituents by either preventing or ensuring the nomination of a new justice, the fact remains that this is a decision that may have too much impact in today’s political affairs. In order to prevent such issues in the future, it may finally be time to think about instituting term limits on Supreme Court justices. As both parties continue to polarize further and further it seems unwise to allow a candidate elected to a four year term to be able to make a decision that can last for several decades, especially as average life expectancy continues to increase (where are our death panels when we need them?). And while the nomination of a new justice may be just one of a myriad of issues this election season, it’s possible the Supreme Court and its newest member may be the ones determining the outcome of an election in the future. If anyone doubts the sway that a single Supreme Court judge may have, he/she should think back to the 2004 presidential election. Note the case of Bush v. Gore where justice Scalia was instrumental in the 5-4 majority vote that denied Al Gore a recount and ensured George W. Bush the victory.
Supreme Court justices can easily be kingmakers in this case and it is important not to underestimate their impact. I hope something will be done in the future to prevent such conflicts. Personally, I would recommend having those judges who voted in favor of the Affordable Care Act to replace their own (likely private) insurance with the one they helped push through and have them die while waiting in line for a doctor’s appointment. Otherwise, it seems the cycle will only repeat itself, with the arguments getting more and more vicious each time as both parties continue to polarize. And as that occurs, I can only wait in the vain hope that the political horseshoe theory eventually takes effect and we end up with a bunch of agreeable bi-partisan politicians.