I had to look this up right away: the Texas ranch where the late Justice Scalia died after quail hunting is not the same Texas ranch where former Vice President Dick Cheney shot a lawyer while quail hunting almost exactly 10 years ago.
Mitch McConnell and the Republicans seem to be saying they will not confirm a new justice as long as Obama is president, which basically means the Court will have no more than 8 members for at least the next year.
Then if Bernie or Hillary wins in November, the R’s still won’t want to confirm a new justice, and if the Donald or Ted wins, the D’s won’t want to either.
So there’s a strategy: just wait it out as the number of justices slowly diminishes. That is already happening for many other federal district and circuit court judgeships and several other leadership roles in Washington; for example, there has been no confirmed IRS Commissioner since May, 2013.
Here are the remaining justices of the Supreme Court in order of birth:
Ruth Bader Ginsburg (born 1933, appointed by Clinton)
Anthony Kennedy (born 1936, appointed by Reagan)
Stephen Breyer (born 1938, appointed by Clinton)
Clarence Thomas (born 1948, appointed by Bush 41)
Samuel Alito (born 1950, appointed by Bush 43)
Sonia Sotomayor (born 1954, appointed by Obama)
John Roberts (born 1955, appointed by Bush 43)
Elena Kagan (born 1960, appointed by Obama)
Let’s just assume they all get the best health care (and no, they are not on Obamacare) and will be able to stay in office until about age 85, which seems where Ginsburg is headed (and by that standard, Sandra Day O’Connor, a true swing vote, would just be leaving the Court and Samuel Alito would not have been appointed as her successor in 2006). Scalia didn’t quite make it to 85, but then, he smoked cigarettes and pipes… and went quail hunting in Texas.
As we see from the appointing presidents, the party dominance would switch back and forth over the years. When there are 5 (it reads like an Agatha Christie mystery, doesn’t it?) the 3 Bush appointees would outvote the 2 Obama appointees. But when we get down to the current 3 youngest, in 20 years or so, it will be Sotomayor and Kagan vs. Roberts, a clear 2-1 majority for the Dems.
So there’s a strategy for our leaders in Washington to resolve the gridlock… eventually.
Or, they could seek out appointees who are genuinely non-partisan, who respect legal precedent, who understand that law evolves with society, and who don’t claim to know more about what the Founders thought than the founders put in writing.
Let’s not hold our breath, however.