Within an hour of the announcement of the death of Supreme Court Justice Antonin Scalia, Senate majority leader Mitch McConnell announced that there would be no hearings to replace Scalia until after the elections in the fall. His argument is that we should await the decision of the American people as to the next president before deciding on a replacement Justice.
The constitution is clear that the President of the United States selects nominees for the court with the advice and consent of the Senate. What is not clear is how to select a new justice if the senate refuses to hold hearings on a presidential nominee.
There are a number of “what ifs” built into the constitution and its amendments. If the president dies or becomes incapacitated, we have a vice-president at the ready. Three successive congressional acts have defined a presidential succession that goes well beyond the vice president. If there is no majority of votes cast in the electoral college, the election goes to the House of Representatives. If congress doesn’t like the actions of a president s/he can be removed through the impeachment process. If a tie vote occurs in the Senate, the Vice-President as casts a tie breaking vote.
There is however no mechanism to force a recalcitrant senate to act to confirm a selection to the supreme court. For that matter the senate could refuse to confirm any federal judge appointment, essentially abolishing the federal courts by attrition.
When the court is short one member, the possibility of a tie exists. In the case of a tie there is no decision. The previous appeals court decision stands. The death of Scalia has already changed things. In a recent civil action, Dow Chemical decided to pay an 835 million dollar settlement in an antitrust price-fixing case that it had lost in lower courts and that was on the Supreme Court’s docket. (A 4-to-4 tie at the Supreme Court would have left the lower court’s decision in place, including a judgment in excess of a billion dollars against Dow.
A serious problem exists now because tied decisions mean that the circuit court decision stands, but only for that circuit court, of which there are 12 (Arkansas is in the 8th circuit.) Tied decisions mean no decisions, it is as if there were no supreme court only the 12 regional circuit courts. There can be no consistent federal law throughout the nation as long as tie votes are possible.
With only eight justices on the court, and the possibility of tie decisions, we have a situation which “Balkanizes” federal law (Balkanization is a term which refers to a condition when one political unit fragments into several smaller units, especially when there are political differences among the smaller units. It refers to the Balkan Peninsula in the 19th century when the Ottoman Empire collapsed into a number of smaller often hostile nation states.)
Right now it is not the United States of America, but rather the “Amalgamated 12 Different Regions of America.”