Ed Whelan has advice for the Senate Republicans to pay attention to history.
It’s been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year, and there has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court.
Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.
Too many decisions are 5:4 now. This will flip everything that conservatives care about. We'll have to see if cases before the Court right now may end up as ties that will revert to the lower court decisions.
Now it becomes more important than ever for the Republicans to stop horsing around with the nomination battle. We can't afford a President Trump making nominations. He's already bought into liberal spin to criticize Scalia on affirmative action. And he praises his sister a radical pro-abortion circuit court judge. With a real opportunity to win this year, let's not throw away that opportunity. The Supreme Court is too important to turn over to Clinton or Sanders.
Even with a Republican president, it would probably be impossible to get a conservative like Scalia ever confirmed again.
My condolences to his family. It is a tragedy for them and a disaster for the country.
Tom Goldstein at Scotusblog explains what will happening to the cases this term that have not yet been decided. If the justices are tied, the lower court stands. And there are quite a few crucial decisions remaining.
The most immediate and important implications involve that union case [Friedrichs v. California Teachers Association] and Fisher v. University of Texas at Austin, in which the Court was expected to limit affirmative action in public higher education. Conservative rulings in those cases are now unlikely to issue. Other significant cases in which the Court may now be equally divided include Evenwel v. Abbott (on the meaning of the “one person, one vote” guarantee), the cases challenging the accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, and the challenge to the Obama administration’s immigration policy.
The Court is also of course hearing a significant abortion case, involving multiple restrictions adopted by Texas. In my estimation, the Court was likely to strike those provisions down. If so, the Court would still rule – deciding the case with eight Justices.
There is also recent precedent for the Court to attempt to avoid issuing a number of equally divided rulings. In Chief Justice Roberts’s first Term, the Court in similar circumstances decided a number of significant cases by instead issuing relatively unimportant, often procedural decisions. It is unclear if the Justices will take the same approach in any of this Term’s major, closely divided cases.