SUPREME COURT

Scalia's death plunges campaigns, climate cases into chaos

The death of Justice Antonin Scalia instantly infused the presidential race with sharpened urgency and increased optimism among Democrats that the president's climate initiatives would survive legal challenges.

Republicans looked to the sudden opening on the Supreme Court as a coalescing moment for conservatives. They warned another Democrat in the White House would expand President Obama's liberal policies on everything from immigration to abortion.

Texas Sen. Ted Cruz, a leading presidential candidate, cautioned last night in a Republican debate that "two branches of government hang in the balance" of the election.

In Congress, Scalia's death is already inflaming partisan battles that observers say threaten to overwhelm potential points of bipartisanship on criminal justice reform and energy. With 10 months left in Obama's term, experts say Republican efforts to block a new justice's nomination could be record-breaking.

Obama ceded no ground yesterday, alerting lawmakers and the nation that he will name Scalia's successor "in due time." If successful, the move stands to tip the balance of the court out of conservative control.

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Scalia's death leaves the nine-person bench ideologically tied at four to four. Scalia was found dead yesterday at a Texas resort.

"There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote," Obama said. "These are responsibilities that I take seriously, as should everyone. They're bigger than any one party. They are about our democracy."

Among Scalia's last decisions was his support Tuesday enabling the high court's 5-4 ruling to delay the Clean Power Plan, Obama's signature regulation to cut carbon dioxide emissions in the electricity sector.

That order stands. But his death casts uncertainty over the future of Obama's executive actions. If Republicans refuse to vote on a nominee or reject Obama's choice, lower-court decisions take prominence. That magnifies attention on the U.S. Court of Appeals for the District of Columbia Circuit, which is set to rule on the overall legality of the Clean Power Plan later this year (see related story).

Senate Majority Leader Mitch McConnell (R-Ky.) warned Obama yesterday that any nominee faces a Republican-led chamber that's opposed to helping a Democratic president upend the balance of the court in the waning months of his second term. He told Obama to let the next president pick Scalia's successor.

"The American people should have a voice in the selection of their next Supreme Court justice," McConnell said.

That ignited instant attacks from Democrats, who alluded to the idea that a GOP delay seems to challenge the originalist principles of constitutionalism hewed to by Scalia.

"It is outrageous that Republicans in the Senate and on the campaign trail have already pledged to block any replacement that President Obama nominates," Hillary Clinton said at a fundraiser in Denver last night, according to The New York Times.

"Barack Obama is the president of the United States until Jan. 20, 2017," she added. "That is a fact, my friends, whether Republicans like it or not."

Massachusetts Sen. Elizabeth Warren, a Democrat, mocked Republicans today by saying the Constitution doesn't require the president to fill vacancies on the high court "except when there's a year left in the term of a Democratic president."

"It would also prove that all the Republican talk about loving the Constitution is just that -- empty talk," Warren added.

Greens now optimistic on Clean Power Plan

History shows that the responsibility for making a lifetime appointment to the court is shared by the president and 100 senators. The executive is given discretion for nominating a justice, but his or her confirmation is in the hands of the Senate.

Of the 160 nominations made since 1789, the Senate has confirmed 124 of them, according to a report by the Congressional Research Service last year. Eleven of those were rejected outright, raising the possibility that Obama's choice would make historic waves if the Senate voted the jurist down.

"That would be politically earthshaking," said Tom Lorenzen, a partner at Crowell & Moring and a former Justice Department lawyer who defended U.S. EPA rules.

Perhaps more likely, the Senate could stall until Obama leaves office. Historically, 25 nominees failed to be appointed after withdrawing or not receiving a vote. Under that scenario, Obama's pick could have a leg up under the next president if a Democrat wins in November.

But even a long delay would be historically notable. Obama has 341 days remaining in office. Since 1975, the average length of time it's taken the Senate to vote is 67 days. The longest is 108 days. That was for Robert Bork, who the Democratic-controlled Senate rejected 58 to 42.

Now, like then, the nomination threatens to fuel an intractable amount of rancor.

"The Senate will almost certainly come to full stop," said Mike McKenna, a Republican energy strategist.

Among the jurists being mentioned as possible successors to Scalia is Sri Srinivasan, a D.C. Circuit judge who was confirmed by the Senate in 2013 in a 97-0 vote. Others include D.C. Circuit judge Patricia Ann Millett and Loretta Lynch, Obama's attorney general.

Paul Bledsoe, a former climate aide under President Clinton, predicted that a prolonged delay to vote by the Senate could "backfire politically" at the height of an election year.

He also sees brighter days ahead for Obama's executive actions on climate change.

"The court's stay of the Clean Power Plan now seems even more a case of partisan overreach," Bledsoe said in an email, adding, "the likelihood that the CPP will be upheld by the court has just increased dramatically."

Reporter Jeremy Jacobs contributed.

Twitter: @evanlehmann Email: elehmann@eenews.net

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