As soon as news hit that Justice Scalia passed away, multiple Republican presidential candidates and Senate Majority Leader Mitch McConnell have publicly stated that President Obama should not be allowed to nominate his successor and such an appointment should be made following the next election by the new President.
Unfortunately, this is not a hasty reaction, and Republicans actually have been considering for a long time whether it should neuter the Supreme Court if they lacked the power to name the next justice.
Further, the Republican plan to leave the Supreme Court potentially deadlocked at 4-4 on most contentious issues would leave the individual Federal Circuit Appeal Courts as effective “mini-Supreme Courts” for their respective states.
The background to this latest nuttiness was covered a little less than a month ago by Linda Hershman in the Washington Post:
“It’s very likely that that seat just stays vacant,” Ian Millhiser of the liberal Center for American Progress Action Fund told USA Today. Conservative law professors Josh Blackman and Randy Barnett have gone further, arguing in the Weekly Standard: “The inconvenience of one or more terms at the Supreme Court with fewer than nine justices — even through an intervening midterm election — pales in comparison with the repercussions of making a bad selection. It’s worth the fight, and worth the wait.”
Conservative legal scholar Michael Stokes Paulsen says the court could get along fine with eight justices. “What do you do with ties, in the meantime?” he wrote in the National Review. “Again, there’s an easy answer. The Court has a standard practice about what to do in such situations, and it is a sound one: it leaves the judgment of the lower court alone. Ties go to the winner in the ‘court below,’ but without setting a national precedent. This has happened many, many times in our nation’s history, and the republic still stands.”
Do you see what is being advocated? If Republicans don’t control the nominating process, Republicans are considering leaving the Supreme Court deadlocked at 4-4 among Democratic/Republican jurists. And if the Supreme Court is deadlocked, then it can make no new law. When would that deadlock be broken, and the Supreme Court’s role be restored? When and if Republicans can fill the empty seat.
As the WashPo further explains:
Refusing to go along might mean leaving a seat, or seats, open for years. . . .
A tied Supreme Court traditionally issues a per curiam, or unsigned, decision affirming the ruling of the lower court. So under an eight-member court that regularly produced split decisions, each circuit would be like a little Supreme Court of its own.
Each federal circuit would be like a little Supreme Court of its own! That means that the Fifth Circuit (which covers Louisiana, Texas and Mississippi), or the Tenth Circuit (OK, WY, NM, KS, CO) could each begin to set up their own constitutional rulings on abortion, voting rights, labor rights, environmental regulations . . . everything, which would be the final law in those states.
If you understand the ramifications, what Republicans — again — are toying with is destroying another institution of government unless and until it is under their complete control. I don't know if they will be able to go this far, but they are thinking about it, and writing about it, openly.
[*Linda Hershman of the Washington Post thought this above chaotic scheme may ultimately favor liberals, on balance, based on the number of Circuit Courts with a Democratic majority. I disagree with Ms. Hershman. And one reason I disagree is that Democrats (admirably) have no appetite for or competence for this type of government by sabotage. In addition, over time, such a disordered system will always devolve to its worst, lowest state of disorder and inefficiency — none of that favors the liberal agenda.]