The death of Justice Antonin Scalia has added a major new dimension to the 2016 elections, as what was previously theoretical is now an undisputed fact: the next president of the United States, and the Senate sworn in the first week of January 2017, will determine whether the Supreme Court will have a liberal or conservative majority. Scalia’s death leaves the court with four liberals and four conservatives, so the next justice will become the swing vote.
Of course, it must be immediately understood that the current Republican-controlled Senate will not approve any appointee that President Barack Obama nominates. With Republicans holding a 54-46 majority, the president would have to get four Republican Senators to support his nominee, with Vice President Joe Biden breaking the tie. While there may be a slight possibility of getting four Republicans, there is no chance whatsoever that the president would get the 14 Republican Senators he would need to break a filibuster. It probably won’t even come to that. It is doubtful that Senate Majority Leader Mitch McConnell (R-Kentucky) would even allow a nomination to come to the floor.
It is not difficult to predict how this issue will play out over the course of the election. Senators Ted Cruz (R-Texas) and Marco Rubio (R-Florida) will angle for votes by promising to filibuster any candidate the president nominates for the remainder of his term. They will also use this opening to undermine Republican presidential frontrunner Donald Trump by telling conservatives that they can’t trust Trump to appoint a “true conservative” to fill Scalia’s vacated seat. All the other Republican candidates will also promise to appoint a “strict, constitutional conservative,” but Cruz and Rubio, the only Senators in the field, will have the advantage here, and they’ll milk it for all it’s worth.
The Democratic presidential contenders will both stress to their bases the opportunity inherent in this situation to change the composition of the court away from its longtime conservative majority. Hillary Clinton will hammer home to the Democratic base the idea that she is more electable than Bernie Sanders and that it is crucial to nominate the candidate with the best chance to win the election, in order to ensure a liberal majority on the court. Sanders will cast this as an opportunity to bring about revolutionary change and may well float the idea of appointing Senator Elizabeth Warren (D-Massachusetts) to the court.
President Obama will likely hammer the Republican Senate at every opportunity between now and the election for refusing to act on his nominee or nominees and leaving a Supreme Court seat vacant for a year or more for political reasons. All candidates of both parties will stress the need for their party to control the Senate in 2017. With Senate control up for grabs this year, this will be a key point of emphasis.
This election just got ratcheted up to Defcon 1.