Especially if Senate Republicans block a liberal appointee to the Supreme Court, this has the potential to inject this issue into the Presidential campaign. And it will work both ways. You can bet that Ted Cruz will be running on a platform to replace Scalia with more and more Scalias. This could finally be the election that brings the Supreme Court into national focus much more (it has not been mentioned so far in any of the presidential debates I’ve seen). You can listen to UCI Law Dean Erwin Chemerinsky discuss the implications of the changing Supreme Court with Dahlia Lithwick on
Slate’s Amicus podcast.
The Implications for the Nation of a changing Supreme Court. There is
so much at stake concerning the Supreme Court for the next few years. As I wrote in
Plutocrats United, the easiest way to amend the Constitution to deal with campaign finance disasters like the Supreme Court’s opinion in Citizens United is not to formally amend the Constitution, but instead to change the composition of the Supreme Court. Regardless of what happens with Justice Scalia’s replacement,
there will be likely at least three other Justices to be appointed over the next 4-8 years of the next President’s term. The stakes on all the issues people care about—from abortion to guns, from campaign finance and voting rights to affirmative action and the environment, depend upon 9 unelected Justices who serve for life.
Ed Whelan (a strong conservative, and former Scalia clerk) and I will be doing a webcast on
The Supreme Court and the 2016 Elections on Feb. 22. I’m sure these issues will be hotly debated, as moderated by my colleague (and former LA Times legal correspondent Henry Weinstein).
The kind of battles we will see over the fate of our Nation, enacted in the polarized Congress and in a polarized nation,
will be epic. The stakes are high, and as I explain in Plutocrats United, depending on conditions we could see a vacant Supreme Court for a while (look for conservatives to argue over that) and likely the end of the filibuster for Supreme Court nominees (look for that if there is unified control of the Presidency and Senate, but without a filibuster proof majority.)
As I said at TPM, this is the moment. It is the beginning of
the most important civil rights debate of our time.
Justice Scalia’s Death and Implications for the 2016 Election, the Supreme Court and the Nation | Election Law Blog