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Replacing Antonin Scalia Will Be No Simple Task

Supreme Court Justice Antonin Scalia waits for the beginning of the taping of <em>The Kalb Report </em>in April 2014.

The sudden and shocking death of Supreme Court icon Antonin Scalia this weekend will have enormous repercussions for the U.S. legal system and political process, both in the immediate term and for many years to come.

Although Scalia's death at 79 had scarcely been confirmed Saturday, senators and presidential candidates were already speaking publicly about what his demise will mean. And while the Court itself and the White House respectfully declined to discuss such matters, the fallout was Topic A from the Republican presidential debate in South Carolina to the cable news shows to social media and radio call-in shows everywhere.

The two big questions for everyone right from the start are Scalia's replacement and the functioning of the court with just eight members.

President Obama will, of course, be entitled to name a successor on the High Court. But the Senate is also required to confirm. That process is always a political challenge, and it is especially difficult when the opposition party controls the Senate (as Republicans do now, 54-46). In times of greater partisan harmony, bipartisan coalitions have approved the nominees of presidents whose party is not in Senate control. Scalia himself was confirmed 98-0 in 1986.

But these are scarcely such times.

Ted Cruz of Texas and Mike Lee of Utah, arguably the two senators most implacably opposed to President Obama and all his works, immediately sent social media messages saying no Obama nominee should be confirmed. The next president, both said, should name Scalia's successor.

Before an hour had passed, Senate Majority Leader Mitch McConnell had said the successor should be named by "the next president," and not Barack Obama.

Cruz, of course, hopes that next president will be himself. He is one of six major candidates still in the race for the Republican nomination.

In truth, even a nominee Republicans did not immediately reject would need to get all 46 Democrats (including two independents who caucus with the Democrats) and 14 Republicans to vote to confirm. Even under ideal circumstances, this would be hard to imagine.

The last justice appointed to the Supreme Court to be confirmed by a Senate controlled by the opposition was Clarence Thomas. Nominated by President George H.W. Bush in 1991, Thomas was confirmed when several of the majority Democrats crossed the aisle to vote for him.

If no Obama nominee is confirmed this year, two things happen. First, the current court concludes its current term with just eight justices. Second, it begins (and probably concludes its) next term (beginning in October 2016) with no more than eight. If any other of the justices should leave for any reason, the court would be down to seven.

But what happens when the court is short-handed by one? Given the 5-4 votes by which the closely divided Court now typically rules, Scalia's reliable vote on the conservative side will probably mean at least a few cases ending in a 4-4 vote — perhaps many.

These could include the crucial matters of abortion access, affirmative action in college admissions and the executive actions of the president on immigration and greenhouse gas emissions from power plants. In such a case, there is no majority for a decision and the court is simply not able to rule. That means the lower court's ruling will stand, and it will be as if the case had never come to the Court or the Court had declined to hear the case.

A corollary question involves the fate of cases already argued in the current term that have not yet been decided? According to Thomas Goldstein, publisher of the authoritative SCOTUSblog and a member of the Supreme Court bar, any case where the justices have taken an internal vote but not publicly decided the case will be void.

"Of course," adds Goldstein, "if Justice Scalia's vote was not necessary to the outcome, for example if he was in dissent or if the majority included more than five justices, then the case will still be decided, only by an eight-member court."

In other words, if the court decides something 5-3 or 6-2 or 7-1 or unanimously, being short-handed does not matter. But in all cases of a tie, the absence of a deciding vote will matter a great deal.

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