After weeks of telling you that very little affects the fundamentals of a presidential campaign—not conventions and rarely debates and never an August news cycle—the opening of a Supreme Court seat that had been appointed by Democrats is arguably a bigger deal than the Comey October surprise was in 2016.
Campaign-ish Quick Hits
Everyone sucks: For all the Republicans who said that it would be crazy to fill a Supreme Court seat in an election year and all the Democrats who said it was a constitutional imperative not to leave a Supreme Court seat open, let me introduce you to your chickens. They’ve come home to roost. And to all the conservatives out there who now admit it was always about constitutional authority and power, just remember this from Matthew Yglesias: “if Democrats win a majority in 2021 and use it to: End the filibuster, Adopt DC/PR statehood, Ban partisan gerrymandering, Create a 17-justice court with 17-year term limits, Expand lower courts on pace with population growth, Them’s also the rules!” Then again, Josh Holmes may have put it best: “Why would a Republican be the least bit concerned with the threat of something they’ve already said they’re going to do? … They shot the hostage before the standoff.”
What happens if: A lot of conjecture out there on the “what ifs.” Let’s try to break it down a little.
The Supreme Court currently has eight members, which is not all that unusual. Remember, the court was 5-4 with Republican appointees before last week, so it is 5-3 now. If an election-related lawsuit were to go to the court in December without a newly confirmed justice and the court actually split 4-4, the rule is that the lower court’s opinion stays in place (i.e., the ruling on the field stands unless a majority of the refs disagree). This is highly unlikely for the very reason that the justices are well aware of what would happen. And remember, Bush v. Gore was actually 7-2 on the constitutional problems (and 5-4 on what to do about it).