Whither SCOTUS?

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It was fun while it lasted

First, let's be clear. There is no chance of an Obama appointment to replace Justice Scalia. None. All it takes is Ted Cruz, and there are plenty more behind him if he wavers. It's actually not so bad in the near term - many of the lower court decisions that will stand in the event of a deadlocked Supreme Court will be decided by much more rational, progressive judges than you find on the Roberts court. Which is to say, there are cases that would probably overturned that won't be, and cases that simply won't be challenged in a court unlikely to be able to overturn the lower court ruling.

But the interesting challenge comes in a year from now, when we have inaugurated the 45th President. There is no rule or requirement governing the Article II provision around 'Advice and Consent'. Only a set of obsolete, gentlemanly norms. Esteemed colleagues, unanimous consent, friction and veto points - the cooling saucer of government, as George Washington is said to have called it. So if we assume that a Democratic President is elected in November - remember, that President is certain to either be the hated and reviled Hillary Clinton or an aging northeast liberal socialist who would inspire perhaps even more cross-aisle acrimony - it's hard to see the Republicans in the Senate consenting to the creation of a **GASP** liberal supreme court. As the Republican party has lurched so far to the right, they have been unable to enact their agenda through legislation, and have depended on the courts to make the policy they could not. And from immigration to law enforcement to voting rights restrictions to campaign finance - even to putting the odious GW Bush in the White House in 2000 - they have done exactly that. As their only real source of political power, movement conservatives are loathe to lose their influence on the court.

Ah, but what if the Republicans win in November? That's an equally interesting question. Senate Democrats will be rightfully butthurt - they will believe they were "owed" an appointment and it was taken from them in an expression of raw, unconstitutional lawlessness. While it's harder to see the Democrats going an entire four year presidential term without approving a Supreme Court Justice, it's equally hard to see them willingly plunge into hearings and votes on President Trump's judicial nominations. Just as the filibuster went from being a rarely used tactic of last resort to a routine supermajority requirement to move legislation, one can see how two years of political trench warfare over the Supreme Court might lead to a new sense of 'normal' that would make it easier for either side to refuse to confirm the President's nominee.

Of course, the evenly divided 4-4 court isn't going to remain in place for long. Ginsburg is 83, Kennedy will be 80 in July and Breyer is 77. So the court could fluctuate between ideologically neutral, conservative or liberal as the number of sitting justices declined and could not be replaced. The problem isn't really ideology - the problem is an obsolete Presidential system with two legislative bodies with co-equal power. Our system was designed for the earliest popular democracies - before trains, before telegraph, when horses provided the fastest mode of transportation and communication. The system worked as long as it did because the political parties tended to be of mixed ideologies - you had, for example, liberal northeastern Republicans and conservative southern Democrats. There was less to be won or lost by one party or the other, and they could sit together and make deals to do the people's business.

Now, the political parties have hardened along strict ideological lines, and compromise has come to be viewed as tantamount to defeat. Every issue is all or nothing, and there is no congeniality or political give-and-take. Driven by an increasingly angry and frustrated consituency, both parties seek to make progress while denying any advantage to the other side. In a divided government like we have today, this results in stasis, the status quo of endless trench warfare, neither side able to find leverage within a system that provides so many tools of obstruction. The Republicans in particular see this fight over the Supreme Court as a matter of life and death, and it's hard to see how they could be convinced to give in when a single Senator can block a nominee forever.
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