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George Diepenbrock
KU News Service

Media advisory: Replacing Scalia will be test of 'how polarized and dysfunctional American politics has become,' professor says

Mon, 02/15/2016

LAWRENCE — A University of Kansas researcher who studies trends in partisanship and American politics says the process to replace Supreme Court Justice Antonin Scalia will be the "most nakedly partisan game of political advantage we have seen in years."

Patrick Miller, assistant professor of political science, is available to comment on the issues surrounding President Barack Obama seeking to replace conservative justice Scalia, 79, who died of natural causes on Saturday.

Miller has written journal articles on national politics and attitudes of partisanship.

Q: What are the important political dynamics to consider as President Obama seeks to appoint a replacement to Justice Scalia with a Republican-controlled Senate?

Miller: This will be a test of just how polarized and dysfunctional American politics has become. Precedent here supports President Obama making a nomination, and Republicans would be effectively creating new rules around nominations if they don't vote on that nominee. The politics around this will be one of the most nakedly partisan games of political advantage we have seen in years. Though ultimately, it may suit the Republicans to negotiate now from a position of strength. Ignoring an Obama nomination means we would be waiting a year for a nominee, after the election — and that the court will be functioning without a full membership.

Q: What is the big gamble?

Miller: The presidential election is a toss-up that either party could win. And Republicans will be defending a slew of highly vulnerable freshman senators from the wave election of 2010 that saw many unlikely Republicans win office in a bad year for Democrats. At least two incumbent Republicans are favored to lose their seats, and vulnerable Democratic seats are few in number given the party's shellacking six years ago. Republicans have a real risk of losing the Senate and at best face a reduced majority. So delaying a vote is a gamble. It could pay off in the form of a Republican president and a smaller but surviving Republican Senate majority. But it could also blow up their faces with a Democratic president and a new Democratic Senate majority replacing Scalia, giving the Republicans substantially less influence in the process.

Q: How likely is it that this could shift the Supreme Court to the left? Or is the president handcuffed based on the makeup of the Senate?

Miller: Replacing Scalia will indeed be one of the most influential Supreme Court appointments in recent memory. He was by any measure the most conservative member of the court. Even if President Obama nominated a mainstream conservative Republican judge to replace him, that pick would very likely moderate the court. Given that so many court cases have been decided based on 5-4 rulings, any nudge toward the center could dramatically shift the politics of the court. So we should expect that replacing him would be contentious.

The Constitution requires the president to appoint a successor with the "advice and consent" of the Senate, but it places no timetable on that choice and makes no consideration of partisan politics. Obviously, Obama will want to nominate a successor, giving him a third Supreme Court appointment. But leading Senate Republicans have already refused to consider an Obama nominee, saying publicly that they prefer the next president do that in a year.

There is precedent for later term court appointments. In February 1986, a Democratic Senate majority confirmed President Reagan's nomination of Anthony Kennedy to the court in an election year, and there is a long tradition of deference within the Senate of allowing presidents to have their nominees get a hearing and vote. If Senate Republicans break that precedent, that is a choice they cannot walk back. It risks creating a new, dysfunctional precedent for the next time a Republican president tries to get a nominee through a Democratic Senate.

To arrange an interview with Miller, contact George Diepnbrock at gdiepenbrock@ku.edu or 785-864-8853.

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