As most people know Antonin Scalia passed away this weekend. Say what you will, I agreed with some of his positions on the 4th amendment, not much else. Mark Twain could have been talking about Justice Scalia when he said in, A Connecticut Yankee in King Arthur’s Court:
You see, he knew his own laws just as other people so often know the laws: by words, not by effects. They take a meaning, and get to be very vivid, when you come to apply them to yourself.
Of course in this presidential election year nothing is not highly politicized thus, immediately Republican leaders began talking about leaving the vacancy until after the 2016 presidential election. This would leave the court at partial strength for around a year. The Republicans do this hoping to win the presidential election, what if they don’t? And what if this obstructionist action mobilizes Americans to turn more Republicans out of office?
I believe it’s quite possible to see a scenario where the Democratic nominee wins the presidency and the Democrats retake control of the Senate, maybe even the House. Now imagine a Democratic President and Senate nominate former President Obama to fill the vacancy on the Court that President Obama was denied filling. President Obama was a con-law professor at University of Chicago Law School, that combined with his public service record make him an eminently qualified candidate.
No doubt the Republicans would threaten a filibuster, so the new Senate would need to change the rules of how a filibuster works. One way would be reducing the cloture (vote to end filibuster) to an achievable number (presumably lower than the current 60). Another, better way, would be require the filibustering Senator or Senators to actually debate the entire time, ala Mr Smith Goes to Washington.
Any way you look at it it would be easy for the Democrats to want revenge if the Republicans refuse to allow President Obama to make an appointment to fill Supreme Court vacancy that occurs on his watch. And appointing President Obama as Justice Obama would be sweet revenge.
Of course if this actually happens it will show how broken our system has become. I truly hope the Republicans allow a vote on whomever President Obama a nominates. I would hate to see the proof that our political system is on it’s last legs.