Justice Scalia has died, a fact said to be confirmed by the Governor of Texas. Scalia was on a quail-hunting trip in Texas; although the reports say he died in his sleep.
While family and friends mourn, the rest of the world will be thinking of his successor and the political consequences of his absence. Supreme Court appointments in a lame-duck year of a Presidency are a difficult business; in the current climate it could be impossible unless President Obama finds someone of such stature that not to confirm him or her would be ridiculous. Even if such a person exists, it might be a heavy lift.
Most likely, the nomination will become part of the Presidential campaign, the visible stakes for which just went up a notch. Let’s at least hope that the candidates refrain from enunciating too many ‘litmus tests’ which could have the effect of opening the door for demands for recusal by anyone confirmed.
The gridlock in DC also raises the possibility that the 9th seat might be open for a long time. Certainly the political center of the court just shifted: even when Justice Kennedy votes with the conservatives, the result will be a 4-4 tie, affirming the lower court by an evenly divided court–a result that affirms the decision but does not set a national precedent.
In the short term, this new political balance may change the dynamics of the review of the EPA’s clean power plan: the 5-4 stay by the Supreme Court is no longer as strong a signal that an affirmance below would be reversal bait. On the other hand, less changes in US v. Texas (the immigration case), since there the lower court ruled against the administration’s actions in deferring deportations.