Why Trump and the GOP Might not Want to Fill Scalia’s Seat

By Eric Segall

After Justice Scalia passed away last February, I argued that the Supreme Court should stay at eight Justices evenly-divided among Republicans and Democrats on a permanent basis. It has now been almost a year since the Court has been evenly divided and the justifications for my proposal have only gotten stronger and more persuasive as we have seen how a four-to-four Court actually operates. Moreover, even though it may sound counter-intuitive, it is in both the short and long term interests of President-Elect Donald Trump and the Republican Party (and the American people as a whole) to not fill the vacancy caused by Justice Scalia’s death.

I argued in the New York Times and elsewhere, that a permanent, evenly divided Supreme Court along partisan lines would result in more consensus and bi-partisan decision-making, reduce the opportunities for five or more Justices to impose rigid ideological agendas over long periods of time, and improve the irrational process we now use to select the Justices for our highest Court whose political make-up is largely the result of death, sickness, and strategically timed retirements. I also explained how the proposal could be easily implemented and, as opposed to other popular suggestions to improve the Court such as the abolition of life tenure, mine would not require a constitutional amendment.
          Over the last year, the Court has taken fewer controversial cases and delayed oral arguments in several of the most important cases the Court accepted before Scalia passed away. The Justices have also deadlocked in cases involving immigration, Obamacare, and the free speech rights of state government employees. Not only has the sky not fallen, but perhaps given the passage of time, both Democrats and Republicans can now agree that, if the Court is tied four-to-four on a particular issue, and if the courts of appeals are also split on the question, that is a strong sign that the Justices should not impose a national uniform rule on all fifty states and the American people. After all, shouldn’t the Justices only displace the decisions of more accountable government officials when the constitutional violation is clear, and doesn’t an even split among so many judges strongly suggest the issue in question is not clear?

In addition to the non-partisan benefits flowing from an evenly divided Supreme Court, there are also strong political reasons why President-Elect Trump and the Republican Party should not fill Scalia’s seat right now and instead start serious discussions with the Democrats over how to make an evenly divided Supreme Court permanent (as is the case with the six-member Federal Election Commission, which by law must have three members of each political party at all times).
           First, the new Administration and the new Congress have proposed many significant changes to the current legal landscape, including of course the repeal and replacement of Obamacare and rescinding executive actions on immigration. A bruising and controversial confirmation battle will divert much time and attention from these legislative items.

Second, it is unlikely that the social issues that some GOP constituencies view as so important are particularly high on Trump’s personal agenda. He certainly spent more time during the campaign talking about jobs, immigration, and foreign policy than he did talking about the Supreme Court, which he did mostly in short sound bites.
          Third, the new Senate Minority Leader Charles Schumer has all but announced that the Democrats will not approve any nominee Trump is likely to name. The GOP majority in the Senate, however, is only 52-48. That means there will likely be a fight over whether to end the filibuster for Supreme Court nominees because it is highly unlikely that any nominee will secure 60 votes. That fight may well be bruising and protracted as there are GOP Senators who may defect from the party line during the battle. How all of that plays out to the American people may seriously affect Trump’s, and the GOP’s, overall political agenda. As Nate Silver has suggested“relatively minor differences in Trump’s popularity could make a big difference in whether his agenda is passed or stymied, as … senators calculate the impact of their vote in 2018 or 2020.” Is this battle over a Supreme Court nominee one that Trump wants at the beginning of his Presidency?
           Fourth, ending the filibuster for Supreme Court nominees could of course come back and haunt the GOP when it is again the minority party in the Senate. It is not going out on a limb to suggest there may well be turbulent times ahead and, if there are no other vacancies on the Court over the next four years, and given the ages of the current Justices, the real balance of power on the Court could well be determined by the 2020 elections. Ending the filibuster for SCOTUS nominees is definitely a roll of the dice for the GOP.

            Fifth, as I argued in my prior pieces, an evenly divided Supreme Court is a weaker Court. The GOP has not been completely successful over the years appointing Justices who remain consistently conservative, as the examples of Justices Blackmun, Souter, and Kennedy demonstrate. It is in the long-term interests of both political parties in the Congress to weaken the Court so that fewer federal laws are struck down by the Justices simply on the basis of ideological disagreement.

            Finally, numerous conservative senators on the Judiciary Committee such as Ted Cruz, Mike Lee, and Chuck Grassley, constantly talk the talk of states’ rights. A permanently evenly divided Supreme Court is less likely to displace state laws over the long haul than a Court where five or more Justice share the same agenda, and, as noted earlier, there is no guarantee the Court will over time have a majority of conservative or states’ rights friendly Justices.

            There are compelling non-partisan reasons to support a permanent evenly divided Supreme Court. Such a Court would work better for all the American people, But there are also strong political reasons why the GOP might want to avoid a contentious battle over the next nominee during the first year of the new Administration. Justice Scalia’s seat should stay empty until the Congress, the President, and the American people have time to study and reflect on the many upsides to maintaining the current political balance on our nation’s highest Court.