As an American in England, one of the things I have found most enjoyable about my sojourn has been my relative isolation from the cafeteria food-fight that is American politics. Yet somehow, despite this perfect opportunity to put it all behind me for a time, I find myself drawn back in again and again to the intricacies of that great, unenviable farce. So despite my reluctance, it would be a betrayal of my soul to turn my back on the events of the weekend in which I write these words, for it was one of the most important weekends in American politics in a very long time. A Supreme Court Justice has died, and not just any justice, but one of the most established and influential justices of our time: Antonin Scalia.
Armed with a legal mind as principled as it was brilliant, Scalia was a formidable force who is in death being given his due as one of the great unsung heroes of the American Right over the past three decades. However, these accolades will be of small consolation to the Republican Party, who now find the ball in their court. The appointment of any judge less conservative than Scalia will constitute a political defeat for them, as it would represent an average shift to the political left for the highest court in the land. Unfortunately for them, Barack Obama is still president, and he will be for another 11 months. There is still time to fill the bench and turn eight into nine, and it is one of the constitutional duties of the President to appoint nominees to the Court. With the weight of both political opportunism and structural imposition bearing down upon him, it is unthinkable that the President will not try his luck at giving a judge of his own choosing a seat at the ultimate US Judicial office.
To clarify why this is of such importance, it’s time to for a crash-course in American politics. The Supreme Court exists to weigh in on questions relating to whether certain laws are in line with the standards laid out in the US Constitution. You don’t go to the Supreme Court to argue traffic tickets, you go to debate whether something is fundamentally inimical to the cornerstone of American political law. The rulings that the Court hands down can shape the legal, political, and cultural fabric of the nation for decades, and with the death of Scalia, what was once a slim majority of five conservative judges to four liberal ones has just been erased. Given this, there is a very strong case that the matter of deciding the next American president is the second-most important political battle of the coming year.
However, any nominee put forward by the President must also be confirmed by the Senate, the upper house of the American Congress. This is where the fun begins. The Senate is currently controlled by the Republicans, who have 54 senators to the Democrat’s 44. Not only that, but any nominee being put forth for consideration must be approved by the Senate Judicial Committee, which is also controlled by the Republicans, who have the power to make sure that the issue is never even discussed. Not only that, but one of the most notable members of this committee is Republican presidential candidate Ted Cruz, who is sure to do his best to delay the process as long as he can.
It would be hard to blame the Republicans if they went down this route. As stated early, they lose if anyone less conservative than Scalia is appointed. They need to push this nomination back. Of course, this is risky. To the victor go the spoils, but if a Democrat takes the White House, someone less conservative gets put on the Court, and that is game over for the Republicans. Just to preserve the status quo (their best-case scenario given the circumstances), they need to gamble on not only winning this election, but also on being able to successfully delay a new Supreme Court nomination for a year. To say this is a tall order might be understating things a bit, but it is still a very real possibility.
Furthermore, it is very possible that the next president will also have to find a replacement for Ruth Bader Ginsberg, a strong liberal voice who is herself getting on in years. A Democratic president might have the chance to replace Scalia with a liberal and put another liberal in Ginsberg’s place, swinging the Court to a 5 – 4 left-wing majority. A Republican president might have the chance to replace Scalia with another conservative and then replace Ginsberg with a right-wing judge, putting the Court firmly in the hands of a 6-3 conservative majority.
This election has (literally overnight) taken on supreme importance. A president has at most eight years. A Court can last a generation. This is no longer a battle for one branch of the American government. It is now a battle for two, and for both the Republicans and the Democrats, it is winner-take-all. Whatever happens next is not only going to be extremely interesting, it is going to shape American politics for decades to come. If there was ever a time to pay attention, it would be now.
Photograph: Levan Ramishvili