Following the untimely passing of Associate Justice Antonin Scalia, the nation is engaged in a vigorous debate over whether the Republican-controlled Senate should confirm President Obama’s nominee to replace Justice Scalia on the Supreme Court (President Obama has made it quite clear that he intends to nominate a successor). Senators (and presidential candidates) Ted Cruz and Marco Rubio have both argued strongly against even voting on a replacement nominated by President Obama, leaving the decision for the next President. Senate Majority Leader Mitch McConnell has also expressed this view, though other Republican Senators are waffling.
The discussions about historical precedents have become frankly tedious (and entirely partisan). They are also beside the point. There is no doubt that the Senate has the power to refuse to vote on a nominee, or to vote down a nominee, for purely partisan reasons or to await an election. And what path the Senate does eventually walk will undoubtedly turn on a political calculation by the Republican leadership rather than either precedent or principle. That is politics.
What I want to address is a separate matter, which is the practical, legal consequences of a decision by the Senate to refuse to confirm any Obama nominee. It is now February of 2016. The Supreme Court holds one term a year, beginning on the First Monday in October, and ending in June or early July (the Terms are named for the October in which they start, so we are in the October 2015 Term, or OT 2015 in the jargon). The last oral arguments for OT 2015 will be held on April 27. That means that unless a new Justice is nominated and confirmed before that date, the appointee cannot participate in any case before the Court this Term. Given the current atmosphere on Capitol Hill, clearly that is not going to happen. So, almost all the cases this Term (excepting those decided before Justice Scalia’s death) will be decided by an 8-Justice Court, split evenly between appointees by Republican and Democratic Presidents. Given the hugely important issues pending before the Court currently (including the future of public sector unions, abortion regulation, affirmative action, and the President’s immigration policies, to name just a few), that is very unfortunate.
But it gets worse. Whoever wins the 2016 presidential election will be inaugurated on January 20, 2017 (per the Twentieth Amendment). Even if the President-elect has focused on the question of a nominee to replace Justice Scalia before taking office, a proposition which is far from clear given the complexities of any presidential transition, realistically the earliest he/she could send a nomination to the Senate would be early February of 2017. Then, hearings must be held and a vote taken. It took 87 days for the Senate to confirm Justice Kagan, 66 days for Justice Sotomayor, and 82 days for Justice Alito. They are the three most recent nominees on whom the Senate has held a vote, and the only relevant case studies since the 1990s (Chief Justice Roberts does not count because his nomination to an Associate Justice position on the Court had been pending for quite some time before Chief Justice Rehnquist died and he was re-nominated to the Chief Justiceship). Given that partisan rancor has hardly decreased since Kagan’s nomination in 2010, this means that we can expect around two-and-a-half to three months at a minimum to pass before a new Justice could be confirmed, if they are confirmed, which puts us in late April or early May. The last day of oral argument for OT 2016 is April 26, 2017. Realistically, therefore, if no Obama nominee can be confirmed, the Court will be without a full complement for essentially two entire Terms.
Why is this a problem? Because the most important job of the Supreme Court is to provide clarity and legal certainty. Certainly Justice Scalia, the author of a law review article titled “The Rule of Law as a Law of Rules,” would have agreed. But the Court cannot provide certainty if it cannot decide cases and establish a uniform legal rule for the entire nation. Consider one issue before the Court this year in a case called Zubik v. Burwell: whether the exemption the Obama Administration has granted religious nonprofits from the contraceptive mandate in Obamacare is legally sufficient. The lower courts are divided on this issue, and it is frankly an extremely difficult and contentious one. It would be extremely useful, for nonprofits, for the government, and for the public, to know the answer, whatever it might be. But if the Court splits 4-4 in the case, as is likely, no answer will be forthcoming until 2018 at the earliest (assuming a new case comes to the Court in OT 2017).
Nor is Zubik an anomaly. It is widely understood, and the Supreme Court’s own rules recognize, that perhaps the most important function the Court plays is to resolve “splits,” meaning legal disagreements among lower courts. Many of these splits arise over highly technical, politically invisible issues that get no press coverage, but nonetheless affect the lives of thousands or millions. But they are very often difficult, close issues, because, after all, highly-qualified lower court judges disagreed as to the outcome. As a result, an 8-Justice Court can be expected to regularly divide evenly on a substantial fraction of them, often on lines that have no partisan correlation. The result: continuing legal uncertainty and division.
My basic point here is simple: clarity and legal certainty matter, often more than how legal disagreements are resolved. The current partisan impasse between the President and the Senate threatens to create substantial, prolonged legal uncertainty on the Supreme Court on many important issues. That is bad for Democrats, bad for Republicans, and bad for the United States.