The GOP Can Block Obama's Nominee but Obama Still Wins

Here''s the truth: the Roberts Court is over. He remains the Chief Justice of the Supreme Court but his ideologically conservative court is over.

Republicans can make good on their promise to reject any nominee the President puts forward. But the GOP doesn't get the Roberts Court back by doing that.

What we now have with a 4-4 Court is that close, ideological decisions will no longer bet made by the Supreme Court but will go back to lower court rulings.

"But the GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place. That’s what would happen with a proposal to apportion Congress in an entirely new way that would heavily favor Republican districts, which was argued recently. The lower court (in this case a district court which went directly to the Supreme Court for technical reasons) tossed the plan out; conservatives had been hoping the justices would restore it."

"The situation is not always good for liberals. Abortion, in a case that has not yet been argued, was subjected to the most onerous restrictions by the normally conservative Fifth Circuit. If the court deadlocks, most of the abortion clinics in Texas would close. On immigration, the court had announced it would take up another case from the conservative Fifth Circuit over whether Obama has the power to stop breaking up families by ordering the government not to deport millions of undocumented immigrants; the lower court ruling blocked Obama’s executive order, so a tie wouldn’t change that."

"Most of the country, though, is governed by appeals courts dominated by Democrats. The suit against Obama’s environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. It’s unlikely the now-divided Supreme Court would come up with a majority to stay the new rules: The vote to stay the old ones was (naturally) 5 to 4."

"That’s why the effect of an equally divided court has enormous potential to strengthen Obama’s hand in dealing with the Republican Senate in picking a replacement: Even if the GOP blocks his nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority. The institutional cues for Obama are completely different than for the court. The Constitution clearly assigns the task of nominating judges to the president — with the Senate’s advice and consent, to be sure, but for most of American history, presidents got a fair amount of deference. Acting politically is consistent with occupying elected office, so that’s what Obama should do. Political considerations, after all, are what motivate Republicans to pledge to block nominees before any have been announced. This is the moment for Obama to assert his political prerogatives as firmly as his opponents always seem to do."

https://www.washingtonpost.com/posteverything/wp/2016/02/13/if-republicans-block-obamas-supreme-court-nomination-he-wins-anyway/

Look, you'd obviously rather have Obama get another liberal on the Court. But failing that, this is not a terrible position for him to be in.

You don't wish anyone dead, but let's just say this is coming at a great time for liberals, just after the SJC had hit Obama's new climate rules.

Obama, I agree should not put a compromise pick for the GOP. Why as they've already vowed preemptively to vote down anyone he nominates?

When his nominee is not voted on this just makes it all the clearer to Democrats why this is about winning the election not about aspirations.

In the meantime, a 4-4 tie works just fine. It's better than the 5-4 conservative Roberts Court. The GOP can threaten not to vote for Obama's nominees all it wants. But the Roberts' Court is over in any case.

UPDATE: This piece also hits on this point: even without replacement, this pushes Court to the Left.

http://www.politico.com/magazine/story/2016/02/scalia-death-supreme-court-will-lean-left-without-replacement-213629