How Scalia’s Death Affects Current Cases

Not surprisingly, it’s Excellent. News. For. Liberals, although the good news might be only temporary.

While we’re here, let me make a couple of points related to the previous thread on replacing Scalia:

• I’m amazed, at this late date, the number of people who think that because it would be undesirable and inefficient for the Court to have 8 members for a significant period of time, it therefore Can’t Happen. The idea that American political institutions naturally evolve towards optimal outcomes is frankly bizarre. (It’s undesirable and inefficient to spend much more money to provide health coverage to fewer people than other liberal democracies; that doesn’t mean that insurance companies will inevitably go extinct and payments to every sector of the health industry will inevitably be substantially reduced.)  If suboptimal policy outcomes are in the political and/or ideological interest of the relevant decision-makers, they absolutely can persist. In some cases, dysfunction does provide political leverage against the political actors causing it. But “different legal holdings applying in the 5th and 9th circuits” doesn’t have the tangible effects of, say, a government shutdown. Getting the public to care about procedural issues is always very difficult.
• The choice made by Senate Republicans to go all-in and preemptively reject any Senate nominee would make getting the confirmation of a Democratic nominee by a Republican Senate more difficult.  It does present a political opportunity for Democrats, in that a competent opponent should be able to hang Roe v. Wade as an anchor around the necks of blue-state Republicans like Kelly Ayotte and Mark Kirk and Pat Toomey and Ron Johnson. But if enough of them survive  — and they could, these elections will not be referenda on Roe even if the Court will be a higher-salience issue — what then? If they’re not willing to even pretend that they would vote to confirm someone with their political career on the line, what is going to make them do it once they get a brand spanking-new six-year term?  Presumably none of them want to spend six years as persona non grata among the Republican conference and probably unable to survive a primary if they want to be re-elected. Maybe a couple of them can be pressured to confirm someone, but this demands an argument, not blithe assumptions. I don’t see the politics of getting Republican votes to confirm a Democratic nominee as easy; they are in fact enormously difficult.