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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsIf Republicans block Obama’s Supreme Court nomination, he wins anyway
https://www.washingtonpost.com/posteverything/wp/2016/02/13/if-republicans-block-obamas-supreme-court-nomination-he-wins-anyway/After Justice Antonin Scalias death Saturday at 79, the Supreme Court is now evenly divided between four liberal justices and four conservatives, even with Anthony Kennedys occasional swings. What a moment for Scalia to depart: The court faces a wild array of closely divided decisions. It is an election year. And President Obama has stacked the lower circuit courts with Democrats. Obama has been chewing on his legacy for months. Fate has handed him the opportunity of any presidency to swing the balance of the Supreme Court from conservative to liberal.
Scalia weighed heavily on the conservative tilt of the current court, registering as more conservative even than other Republican justices in every field except on international and defense issues. There is no other justice whose replacement would more profoundly affect the courts orientation. The courts docket this term shows a clear intent to rule on some of the most contentious issues in the society: abortion, unionization, presidential power, affirmative action, political representation. Nothing in the presidential election in the fall matters more than the ability to shape the court. Now everyone should know that, including an incumbent who once taught constitutional law.
Any nominee, of course, would have to be confirmed by the Republican-controlled Senate. Leaders there, and also most GOP presidential candidates, are already making clear that they intend to block Obama. But they may not realize that leaving Scalias seat vacant plays right into his hands....
But the GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place. Thats what would happen with a proposal to apportion Congress in an entirely new way that would heavily favor Republican districts, which was argued recently. The lower court (in this case a district court which went directly to the Supreme Court for technical reasons) tossed the plan out; conservatives had been hoping the justices would restore it....
Most of the country, though, is governed by appeals courts dominated by Democrats. The suit against Obamas environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. Its unlikely the now-divided Supreme Court would come up with a majority to stay the new rules: The vote to stay the old ones was (naturally) 5 to 4.
Scalia weighed heavily on the conservative tilt of the current court, registering as more conservative even than other Republican justices in every field except on international and defense issues. There is no other justice whose replacement would more profoundly affect the courts orientation. The courts docket this term shows a clear intent to rule on some of the most contentious issues in the society: abortion, unionization, presidential power, affirmative action, political representation. Nothing in the presidential election in the fall matters more than the ability to shape the court. Now everyone should know that, including an incumbent who once taught constitutional law.
Any nominee, of course, would have to be confirmed by the Republican-controlled Senate. Leaders there, and also most GOP presidential candidates, are already making clear that they intend to block Obama. But they may not realize that leaving Scalias seat vacant plays right into his hands....
But the GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place. Thats what would happen with a proposal to apportion Congress in an entirely new way that would heavily favor Republican districts, which was argued recently. The lower court (in this case a district court which went directly to the Supreme Court for technical reasons) tossed the plan out; conservatives had been hoping the justices would restore it....
Most of the country, though, is governed by appeals courts dominated by Democrats. The suit against Obamas environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. Its unlikely the now-divided Supreme Court would come up with a majority to stay the new rules: The vote to stay the old ones was (naturally) 5 to 4.
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If Republicans block Obama’s Supreme Court nomination, he wins anyway (Original Post)
KamaAina
Feb 2016
OP
Erich Bloodaxe BSN
(14,733 posts)1. So maybe any case liberals win at that level should be
automatically appealed by liberals so it gets sent up to the Supreme Court now, and can go 4-4 to stay a win?
tritsofme
(17,379 posts)2. I don't really understand the logic of this piece. Presumably Republicans would prefer 4-4 rulings
that uphold the appellate decision while not setting precedent, to 5-4 decisions written by a new Democratic majority.
They are driven by the idea that a Republican president might nominate a replacement in 2017, I don't see how a year of frustrating deadlock changes that calculation.