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Analysis: Why replacing Scalia could trigger a Constitutional crisis

Antonin Scalia

The death of U.S. Supreme Court Justice Antonin Scalia promises to bring one of the most dramatic shifts in judicial power in the last century – taking the 5 to 4 edge away from the conservatives and handing it to the liberals. But what if it simply doesn’t happen?  In fact, there is no guarantee that Congress will accept a nominee from President Barack Obama.

When a justice dies, the current president picks a new one. But there is no Constitutional requirement that a president’s choice for the Supreme Court be approved before the end of his term (the use of exclusively male pronouns for presidents is, of course, subject to change).  And with time running low in the Obama presidency, it is not inconceivable that the Republican-controlled Senate may refuse to confirm nominees in the few months remaining.

So there’s no Constitutional requirement, and the stakes are impossibly high.  The importance of the majority power in the Supreme Court is difficult to overstate. Just think of a few important 5-4 decisions from Scalia’s era –  Bush v. Gore, Citizen’s United, Hobby Lobby, even up the recent injunction on the president’s climate change policy. And while traditionally the Senate has not prevented the nomination process outright, with the stakes this high, the Republican Senate could feel they must. This pressure will likely correspond with two other factors: The strength of the Republican candidate for president and the polarity of the Obama nominee.

First, the pressure on Republicans to fully block the nomination process in the hopes of a GOP win in November may depend on the faith they have in their candidate.  The current strength of Donald Trump, for example, could prove helpful to Obama. With Trump ascendant, the Republican Senate may not wish to put themselves into murky Constitutional ground with all their hopes pinned to such a political outsider. The reluctance of Republicans to fight would also increase if the Democratic candidate is strongly favored or if their resistance in itself could trigger greater support for the Democrats.

Secondly, and more likely, the fact that there is even the possibility of a Republican mutiny will likely mean that Obama’s choice will be a relatively neutral one. Former shortlisters such as liberal darling Erwin Chemerinsky need not apply.  The Obama nominee will likely be as conservative of a Democrat as the White House can stomach.  But, if they swing for the fences, we could be in for a Constitutional battle – the likes of which we’ve never seen.

Joel Cohen Joel Cohen is the founder and CEO of TalksOnLaw, a legal media and education company based in Manhattan. He writes and speaks on contemporary and controversial legal issues. Prior to TalksOnLaw, Joel worked at Skadden Arps, where his practice focused on cross-border transactions, corporate strategy, and mergers & acquisitions. A student of public speaking and policy, Joel has worked as a speechwriter and strategist both in the US government and within the UK parliament. He also has a passion for the environment and was appointed by the Government of Argentina as an economist on international environmental matters