Why Is the Empty Seat on the Supreme Court Such a Big Problem?

Supreme Court Justice Antonin Scalia died last weekend. Appointing a replacement would usually be boring. This time, it is the last year of a Democratic president’s last presidential term during an election, and Republicans control the Senate. The court is also ideologically divided ideally. This is a huge political battle. This is what it all means.

The task of the president is to appoint a new judge of the Supreme Court

For those unfamiliar with the basics of civil law, the Supreme Court is the highest court in the United States, made up of nine justices, called justices. They decide cases that lower courts cannot resolve, and they have the final say on whether a law is in line with the Constitution. Nine judges serve life-long assignments, which means they remain on the Supreme Court until they retire or die.

Under Article II of the US Constitution , the President’s job is to appoint a new Supreme Court Justice when one of the nine seats remains vacant. The Senate must then vote to approve or reject that candidacy by a simple majority, that is, at least 51 out of 100 senators must approve in order to approve the candidacy.

As the New York Times notes , this process usually takes only a few months. In the history of the United States, it has never taken the Senate more than 125 days to approve or reject a candidate. However, if the applicant is rejected, the process can take much longer. Although long-term vacancies are rare, this has happened several times. In particular, during President Nixon’s term, the Supreme Court remained vacant for 391 days after two of his candidacies were rejected in a row . This was the longest period that a Supreme Court seat remained vacant since the introduction of the nine-seat system in 1869, shortly after the Civil War.

This particular job is the perfect political storm

While most meetings are relatively tedious, many factors make this very important. To begin with, President Obama is in his last year in office, and the election of our next president is rapidly gaining momentum. Republicans also hold 54 seats in the Senate, which means they can block the current president from being nominated if they want to. The GOP hopes there will be a Republican president by 2017 with a more conservative nomination.

This distinction is especially important now, as Scalia was one of the most conservative justices of the Supreme Court . More importantly, with the inclusion of Scalia, the Supreme Court has generally leaned towards conservatism. Four justices – Ginsberg , Breuer , Sotomayer and Kagan – tend to be liberal , although Breuer is sometimes considered more moderate. Meanwhile, four judges – Roberts , Thomas , Alito, and the former Scalia – were heavily conservative. Justice Kennedy is usually a Conservative who sometimes votes alongside Liberals and is often seen as a wavering vote. While this is very difficult to quantify, the result is that the Supreme Court was generally conservative . In fact, since the mid-1960s, the Supreme Court has been leaning towards conservatism. Since Scalia’s seat is empty, the Court is almost ideologically divided ideologically. If the president can appoint a liberal judge, this will be the first liberal court in nearly 50 years.

Several senior Republicans in the Senate, including Majority Leader Mitch McConnell , have said they will not vote to confirm any new appointment until we have a new president . Many senators cite the informal Thurmond Rule that new judges should not be appointed in the final days of the last presidential term. However, this “rule” is applied with wild inconsistency .

According to Polittifact , since 1900 there have been only six cases in which a seat on the Supreme Court remained vacant during the last year of the presidential term. Only one of these six cases happened in the last year, when the president did not try to be re-elected, which means that such a situation is rare enough to start. In this case, the nomination did not take place . However, this vacancy was caused by the resignation of the judge, and not by his death. Failure to appoint a replacement was not as critical as there were nine judges remaining on the Supreme Court at all times. This difference can significantly affect the development of this process.

Empty space does not mean that the court will stop making decisions

There are nine judges in the Supreme Court for good reason. With an odd number of judges, a draw is impossible (except in the case of a challenge ). However, when there are only eight judges, the court does more than just dismiss cases. If the Supreme Court’s decision results in a 4-4 person split while they wait for a new appointment, the court simply upholds the lower court’s decision. However, no precedent has been set, which means that no future cases can point to this decision as evidence of the final decision of the Supreme Court on the matter.

This has many political and social implications. It would be difficult to quantify all of them, but in the short term it can have a significant impact on some very important things. Here are some of them:

  • Whole Women’s Health v. Cole : This is the first abortion case that the Supreme Court has tried since 1992. The case challenges a Texas law that has closed half of the state’s abortion clinics.
  • Evenwel v. Abbott : This case will determine whether all residents of the district are to be counted when selecting legislative districts or only eligible voters. The difference between these two interpretations can have a significant impact on elections to state congresses.
  • USA v Texas : This case challenges a 2014 presidential decree that attempted to grant a deferment of action to individuals illegally residing in the United States but the children of a U.S. citizen or lawful permanent resident.

You can read other cases of immediate concern on Vox . While not all of these cases guarantee a split among the remaining eight judges, at least some of them are likely to be.

As The Washington Post notes, while the Supreme Court is relatively equally divided, the thirteen US courts of appeal (just below the Supreme Court) are not as balanced. Nine of the thirteen courts are composed primarily of Democratic candidates. This does not necessarily mean that judges will always make liberal decisions, but the balance of power in lower courts is worth considering. If a Supreme Court seat remains vacant for a full year (or more), it is likely that more scattered decisions will be based on decisions by liberal-oriented appellate courts rather than overturning the previously conservative Supreme Court. …

There are also indirect consequences of the vacancy of the seat. If the Senate refuses to approve another popular or acceptable candidate, it could negatively impact the 2016 elections. We are not only electing a new president, but 34 Senate seats are up for re-election . Of these, nine are close enough to switch sides in an election. Six of these seats are owned by Republicans. Notably, the president only needs five Republicans to vote to confirm his candidacy for the Supreme Court seat. This type of sharp division can lead the president to nominate a more moderate or universally acceptable candidate in order to pressure the Senate to confirm the candidate. Otherwise, Senate Republicans could risk blocking the nomination on biased grounds and potentially losing their seats.

How to make your voice heard this year

You are likely to hear a lot about a potential new Supreme Court judge in the next few months. In a power struggle between both political parties, the stakes are high enough that the debate could get heated. If it were a sport, it would be a Super Bowl draw with ten minutes left.

However, before President Obama leaves office, there is also plenty of time for most stakeholders to show off. Most Supreme Court candidates are being nominated much faster than the current president left, but a few very rare circumstances have made the process much longer. What happens now depends a lot on how tenacious both sides are and how the president and the Senate can work together.

Fortunately, this is a situation where you get a lot of indirect (and a little direct!) Influence. You can write to your senators shortly to let them know how you feel about your appointment to the Supreme Court. If there are no appointments by the end of the summer or so, you can find out if any of your state senators are among the 34 for re-election. Use this handy tool to get information about your senators.


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