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How the Fight to Confirm Scalia’s Successor Could Change Governance at the Federal Level

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Carroll G. Robinson and Michael O. Adams
March 8, 2016

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The looming partisan political battle in the United States Senate over the confirmation of a successor to Supreme Court Justice Antonin Scalia is likely to have a significant impact on the future procedural operation of the Senate and governance at the federal level.

If you think there is governance gridlock in Congress now and that the federal legislative process has become governance by presidential executive orders and agency regulations, it could get even worse depending on how the confirmation process is handled by Republicans in the Senate.

How Could The Partisan Gridlock in Congress Get Worse? 

The Republican majority in the Senate may block President Obama’s effort to appoint a successor for Justice Scalia by denying his nominee a hearing and vote or by filibustering the nominee. If Democrats retake the Senate in this year’s elections and if a Democrat is elected president, the new Democratic majority will likely have to exercise the so-called “nuclear option” and eliminate the Senate rule that allows Senators to filibuster Supreme Court nominees.

Why? 

Even if Democrats retake the Senate and a Democrat is elected president, Republican Senators – one or more, even though then in the minority – are likely to filibuster the new president’s nominee under the current rules of the Senate.

If Republican Senators do that, especially after blocking President Obama’s nominees, Democrats will eliminate the filibuster rule for Supreme Court Justices so that they can confirm the new President’s nominee, especially if they do not have a 60-vote majority to end a filibuster or not enough Republican Senators were willing to vote with Democrats to end a filibuster.

Once this is done, Republicans will likely move to filibuster must pass legislation, (especially the legislative priorities of the new president) as an alternate way to secure leverage in the Supreme Court confirmation process.

Even if a new Democratic majority in the Senate were to also eliminate the filibustering of legislation, if Republicans retain control of the House of Representatives, which is highly likely (because of extreme partisan political gerrymandering), House Republicans are unlikely to support and pass legislation coming out of the Senate over the objection of Republican Senators.

House members up for re-election every other year will be under extreme pressure from the right wing of their party to hold the line or face a primary challenge from the right – a more conservative alternative to the incumbent.

This likely partisan stalemate would force a newly elected Democratic president to increase the usage of Executive Orders and Regulations to get things done in Washington, DC.

Elimination of the filibuster would likely also happen if Republicans retain their majority in the Senate and a Republican is elected president.

Democratic Senators would likely filibuster the nominee of the new Republican president because Republicans blocked President Obama’s nominee to succeed Scalia. Democratic partisans would demand nothing less and Democratic Senators up for re-election in 2018 could expect a primary challenge from the left if they did not.

If President Obama’s nominee is attacked and blocked by Republicans in the Senate, African-American voters are likely to be very sensitive about this issue this fall and in 2018. A significant number of African-American and other Democratic voters would consider it a betrayal if Democratic Senators supported a Republican president’s nominee for the Supreme Court.

The possible dilemma outlined here could be avoided if:

(1) President Obama somehow found a nominee that was acceptable to enough Republican Senators and Democratic Senators to forge a 60-vote coalition to end a filibuster. This scenario only works if the nominee is given a hearing in committee, scheduled for a vote on the floor of the Senate and there are enough Republican Senators not afraid of  a future primary challenge or for those up this November, courage enough to be willing to lose their seat if necessary.

(2) Either party secures a 60-vote majority in the Senate coming out of this year’s elections. As things stand, this is a very unlikely outcome. Democrats may retake the Senate but no current scenario shows either party picking up 60 seats in the Senate in this year’s elections.

We are not futurists or psychics, but as political scientists we can identify trends. All the data and political patterns since the Reagan Revolution – and most recently the Tea Party phenomenon and the rise of the Elizabeth Warren wing of the Democratic Party – suggests to us that the political fight over the confirmation of a successor to Justice Scalia and its aftermath could be a tipping point for the future of our country, regardless of what the new justice ends up doing as a member of the Court.


AuthorsRobinson and Adams are members of the faculty of the Political Science Department at Texas Southern University in Houston, Texas.

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One Response to How the Fight to Confirm Scalia’s Successor Could Change Governance at the Federal Level

  1. Michael Rodriguez Reply

    April 6, 2017 at 3:16 pm

    Clearly when politicians create systems within power structures that negates the process that requires debate, negotiation, consensus building and sufficing outcomes we are indeed at a tipping point. AS the Legendary artist ‘War” proclaimed we are “Tipping into Darkness”. Just the term ‘nuclear option’ you know the outcome can not be good for the people irrespective of party.

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