Elections matter.  In 2012, President Obama won the right to nominate judges and justices to fill vacancies on the bench — both in the lower federal courts and on the Supreme Court.  In 2010 and 2014, the Republicans won the right to vote down any unacceptable nominees.

Earlier this morning, Justice Antonin Scalia passed away.  In 1986, President Reagan nominated Justice Scalia to fill the Associate Justice spot that had belonged to Justice Rehnquist when President Reagan nominated Justice Rehnquist to be the new Chief Justice.  For most of his career, Justice Scalia was the intellectual leader of the ultra-conservative wing of the Supreme Court.    This vacancy — if filled during this Administration — would be the first time since 1970 that a majority of the Justices on the Supreme Court will be Democratic appointees.  This vacancy will have both short term and long term impacts on politics.

The immediate short term is that — except for a handful of issues — Justice Scalia is generally a solid vote for the “conservative” side of legal issues.  Those cases that would have been a 5-4 split in favor of the conservative side will now be a 4-4 split.  On a 4-4 split, there is no decision and the lower court opinion stands (unless the Supreme Court opts to reschedule the case for the following term).  Additionally, as it takes a favorable vote from four justices before the Supreme Court grants full briefing and argument on a case, the tradition when there is a vacancy is to hold cases that have three votes for full review.   In particular, the continued extension of “free speech” rights to make it easier for conservatives to raise money and harder for liberals to raise moneys is temporarily on hold.   The current opt-out provisions for the contraceptive mandate will probably also survive.  Any decision on the immigration policy will either favor the White House or leave it back to the lower courts to decide on the merits (the current issue before the Supreme Court only concerns a temporary injunction pending a full trial). Continue Reading...