I am absorbing the shock of the loss of Justice Scalia, who has been such an important figure in American constitutional law throughout the years. He was the first new Justice to come onto the Court in the time that I've been teaching. (I began in 1984, and he was nominated, by President Reagan, in 1986.) I've been reading his work for 30 years, and now there will be no more of his writings.
What will happen? I assume that it will be almost impossible for President Obama to get a nomination through the Senate. Is some compromise possible? Perhaps some old and widely respected, neutral-seeming judge or law professor? Do such beasts still roam Earth?
Is it unseemly to talk about the election? No, it is necessary. An old man has died. And he is a man who said, quite recently: "For the believing Christian, death is no big deal." The examinations of his life's work will need to be made, but I feel compelled to talk about what we are always talking about: the next election.
Both conservatives and liberals are launching furious thoughts and plans, including the plan to peg the other side as politicizing the Court and for showing its fighting spirit too soon, while the news of death is so fresh.
There's a GOP debate tonight. We'll get a first taste of how the new focus on the Supreme Court will work. Both parties' candidates are going to say their party needs to have the nomination, lest terrible things happen. Which party has the better argument that things will go awry without their person holding what must be seen as slot number 5 in what will make majority — a majority that will be either liberals or conservatives, depending on whether we get a liberal or conservative President?
The liberals have a great hunger after all these years with only 4, always needing to win over a swing vote. Imagine if they get it: No more of the endless puzzling over what Anthony Kennedy might think about this or that issue. The liberals will be 5, and all the arguments and opinions will be different.
If the conservatives get the nomination, we'll have more of the same, including the susceptibility that Justices appointed by a GOP President have to the lure of the liberal side of the Court, where a Justice can feel the love of the legal elite (as Justice Scalia loved to point out).
Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives? Or will conservatives flare up with hostility to women's rights and gay rights and affirmative action and all the many issues that make them look too mean and ugly?
ADDED: Obama needs to figure out how to present a nominee in a way that would make the Republicans look as bad as possible if they oppose and obstruct. Even if the nominee is rejected, political progress will have been made.
I predict that candidates and their supporters in both parties will overplay their hand and get into trouble. There's no way everyone can show restraint and act neutral and dignified about the Court. It's more a matter of who self-inflicts the most harm.