There’s been a lot of opining about what an intellectual heavyweight and faithful servant of the high court Justice Antonin Scalia was. Yet despite all that devotion to Scalia’s unparalleled prudence, Republicans are keen to ignore his counsel on how disruptive an evenly split court can be.
In fact, it's now clear that no matter who President Obama nominates to fill the Supreme Court vacancy left by Scalia's death, Republicans are most definitely going to block that nomination. That translates into a vacant seat and the potential for 4-4 ties in critical cases for more than a year, until the next president is elected and a nomination is both made and confirmed.
Scalia made his feelings about the harm that would cause the court perfectly clear in 2004, when the Sierra Club petitioned him to recuse himself from their challenge to Vice President Dick Cheney's Energy Task Force. The environmental organization considered the energy group too secretive and, since Scalia and Cheney were duck hunting buddies, Sierra wasn't all that excited about Scalia casting a vote in the case.
Scalia, for his part, wasn't having any of it, reports Judd Legum. Here's an excerpt from Scalia's memo explaining why he wouldn't recuse himself.
On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case. Thus, as Justices stated in their 1993 Statement of Recusal Policy: “[W]e do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage. Even one unnecessary recusal impairs the functioning of the Court.” (Available in Clerk of Court’s case file.) Moreover, granting the motion is (insofar as the outcome of the particular case is concerned) effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.
More like "one unnecessary recusal" in perpetuity for 365-plus days. Nothing like watching Congress's dysfunction infect another branch of government, like an invasive species.