Everything has changed.

I started writing this post yesterday morning with the following opening paragraph:

Make no mistake; nothing will be at greater stake come November 1st than the future of the United States Supreme Court.  The next president is likely to appoint the justices that will determine the court’s direction in the foreseeable future.  Policies, domestic and foreign, can be changed by elections.  Only rarely can the court be rebalanced.  This is one of those times.  So it isn’t only the Supreme Court that will be at stake, it is our future as a nation.

What followed, partially in the context of possibly having the first female president, was focused on the court’s three women justices and the important void they have started to fill in what, until Sandra Day O’Conner, had been an exclusive male club.  That’s still important to consider but, needless to say, is momentarily overtaken by the stunning, sudden and unexpected death of Justice Antonin Scalia.  With his passing everything has changed.  Given Scalia’s momentous Second Amendment Heller vote — one of the few times he wrote the majority opinion — it seems almost fitting that he succumbed while on a hunting trip.  If I am right that the future of the court is more at stake this election cycle than usual, his death has, at the very least, foreshortened the calendar.  Now President Obama, the former law professor, will have an opportunity to rebalance the court.  He will face enormous opposition and, given the makeup of the Senate, may not prevail.  Regardless, he has made clear his intention to “fulfill [his] constitutional responsibilities to nominate a successor”.

A vacancy on the high court with just eleven months remaining in the president’s term has the potential of creating a near term dual constitutional crisis.  First, brought on by subverting the right and duty of a sitting president to name justices.  That right being withheld would be to say the least highly divisive.  Second, the potential for creating a stalemate in which the court will be rendered ineffectual or even powerless at a time when there are so many critical cases pending.  Of course, Obama will, as he said, “in due course” put forward a nominee for the senate’s consideration.  In parallel to that, the court calendar will move forward — cases will be presented, deliberations held and votes taken.  Where cases are less controversial majority (at least 5-3) decisions are possible.  But, given recent history, one has to expect 4-4 deadlocks on many, perhaps all, of the most momentous cases.  Here decisions would revert to the last lower court decision, effectively as if the high court had never taken the case.

When the president and senate majority are in the hands of different parties, confirming court appointments are always challenging.  That is magnified manyfold when a seat on the Supreme Court is at stake.  Obama may have the potential of rebalancing the court, but his options in the kind of justice he might appoint are probably limited.  To be given any chance of approval, it will have to be someone with impeccable and widely recognized legal credentials.  She or he will also have to be someone who, unlike Scalia, is not an overt ideologue.  That suggests an open-minded jurist whose decisions won’t be fully predictable, foregone conclusions.  In our polarized time, whomever he appoints is likely to disappoint, perhaps in differing degrees, both those on the left and the right.  As Harry Enten of Five Thirty Eight suggests, the nominee is likely to be more in the mold of Stephen Breyer than say a Sotomayor or Kagan.  Note that I’m not talking an O’Connor or Kennedy, but certainly a liberal leaning moderate rather than someone of the predictable legal left.  As a constitutional scholar, Obama understands what qualifications are needed for the court.  As president, he will also be mindful of both realities of his own situation and that the court will loom even larger as an issue in the fall election.  What he does could effect the outcome.

Interestingly, Obama faces exactly the question confronting Democratic primary voters in the Clinton-Sanders contest.  Does he take into account the realpolitik of confirmation with the Senate at hand — does he make the pragmatic choice — or does he go for a-come-whatever ideologically comrade candidate?  All at once, the hypothetical of the current campaign is facing him, and us, in real and immediate time.   Obama’s record (before the last few months) would suggest that he is likely to go for the pragmatic, what’s achievable, rather than go for broke.  When it comes to the Supreme Court that may actually be the right thing to do. 

Until very recently, justices on the court evolved over time.  They may have been appointed with some ideological history and certainly by presidents of one party or another, but their decisions were not baked in from day one.  Ingoing conservatives and liberals moderated their views over time.  More important, they were able to judge cases, to the degree that is humanly possible, on the facts rather than on any pre-conceived notion or predictive ideologically driven outcome.  It was, and remains, the kind of judicial process that we would all want if presenting our case before this or any other court.

Obama has an opportunity not merely to rebalance the court, but to send a message — a reminder of what an ideal court should be.  Will he, or can he, take that opportunity at this highly charged moment?  I just don’t know, but hope so.  Would I prefer another Ruth Bader Ginsburg on the bench?   You bet I would!  Would I like to see Citizens United reversed, Roe being sustained, even strengthened, and unionism upheld?  Absolutely, and passionately!  But I’d be happy with another open minded Breyer on the court, with an Obama appointment rather than throwing the dice on what November might bring.  We’re in for an interesting few months ahead.  Expect that “due course” appointment to come sooner rather than later.