The Gamble of Replacing Scalia Now

The Gamble of Replacing Scalia Now

The passing of Supreme Court Justice Antonin Scalia has put Washington in a difficult situation. The court has been closely divided for decades, issuing 5-4 decisions on everything from guns to gay marriage. (In recent years the somewhat libertarian-ish Anthony Kennedy, a Reagan nominee, has served as the swing vote.) If Scalia — the intellectual core of the court's conservative wing — is replaced by a liberal, an era of unchecked left-wing rulings could be in the offing.

President Obama has vowed to take his shot and appoint someone. Senate Majority Leader Mitch McConnell, a Republican, has all but sworn to delay the process until the next president takes office. Here's my quick attempt to lay out the pros and cons for both sides of getting this done now, with the Senate confirming a moderate liberal nominee from Obama.

The big question is what the White House and Senate will look like next year. To get a sense of the answer, I turned to the betting markets BetFair and PredictIt. I assumed that a Senate majority will be sufficient to confirm a nominee — Senate Democrats instated the "nuclear option" for some executive and lower-court nominees already, and with the stakes this high, I can't imagine a future Senate hesitating to do the same for the high court if necessary. Some are already calling for it.

The presidency is the most important position, and the Republicans have just a 40 percent chance of winning it, according to both sites. But if they do win the presidency, Republicans have about a three-in-four chance of winning the Senate too, meaning they'll be able to confirm a strong conservative instead of a weak one. (PredictIt says there's a 30 percent chance we'll have undivided Republican government next year. The chance of a GOP Senate and president without a GOP House as well is virtually nil.)

What about the 60 percent of scenarios where we elect a Democratic president? The probability of undivided Democratic government is just 10 percent, but the Democrats' biggest stumbling block is the House, so their chances of getting at least the presidency and the Senate are much higher.

By itself, the probability of Democrats' winning the Senate is about 50-50 on PredictIt, so simple multiplication suggests a 30 percent chance they'll win both the presidency and the Senate. However, these two outcomes are not independent — if the winds blow in a Democratic direction and cause a Democrat to win the White House, those very same winds may lift Democrats into the Senate. A better guess is probably somewhere in the ballpark of 40 percent.

So, if Obama deliberately offers a nominee who's too liberal for the Senate to confirm, he risks a 40 percent chance that a Republican president will make the call instead, probably aided by a Republican Senate. However, there's also a 40 percent chance that this would create an opportunity for a stronger liberal (should Democrats win the presidency and the Senate). The remaining scenario is just the status quo — Democratic president, Republican Senate.

Of course, it doesn't matter what Obama does if Republicans are indeed unwilling to confirm anyone, and the GOP faces a mirror image of Obama's tradeoffs. If the Senate refuses a moderate nominee, there's a 40 percent chance they'll get someone worse. (Some say that's a distinction without a difference, because even a moderate liberal would destroy the five-vote majority that underpinned many recent conservative victories. Others point out that a moderate nominee would be less likely to overturn those victories.) But there's also a 40 percent chance they'll get someone better, probably much better.

Three other scenarios worth mentioning here: One, if he chooses his nominee carefully, Obama might be able to affect the presidential election itself. The idea would be to choose a nominee whom the Republicans would reject, but whose rejection could be portrayed as rooted in bigotry. Two, in the event that a Republican wins the presidency but the Democrats win the Senate, the new Senate could confirm Obama's nominee before the new president takes office. (The new senators arrive January 3, the new president January 21.) Josh Blackman writes that this would require violating committee rules and "other parliamentary irregularities," in addition to the nuclear option, but adds that "all that is feasible." And three, some say Obama could make a recess appointment, installing his preferred justice immediately but temporarily, though this is unclear as of this writing.

What makes this especially interesting is that these probabilities are not fixed. As the elections draw closer, we'll get better predictions of which candidates will win, which may change the calculus dramatically.

Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen

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