Justice Editor, ThinkProgress.
Some men just want to watch the world burn.
Our politics are broken. A Supreme Court seat sits vacant due to the opposition party’s hopes that it can delay confirmation until a Republican assumes the presidency. The legislative process has more or less shut down outside a handful of must-pass bills, and it is far from clear that even those bills will pass in any given year. And the Republican party nominated a racist with little knowledge of government who openly brags about sexually assaulting women to be the next president.If the polls are correct, Hillary Clinton will be the next President of the United States. But she will likely face off against GOP-controlled chambers of Congress. Due to gerrymandering and the GOP’s geographic advantages during the redistricting process, Democratic House candidates could potentially win the national popular vote by more than six points and still win only a minority of the seats in the House. And there’s a very real chance that the Senate will be under Republican control.
Should Republicans retain at least one house of Congress during a Clinton presidency, a constitutional crisis is likely. Indeed, there are four entirely predicable ways that this crisis could unfold: 1) a blockade on Clinton’s Supreme Court nominees; 2) a total blockade on all nominees; 3) an extended government shutdown; and, 4) a debt ceiling breach.
Notably, none of these are speculative examples. Three of the four involve tactics that the Republican Party has already deployed against President Obama, and the the fourth is only an escalation from a tactic the GOP is presently using against the president.
A Supreme Court blockade
At least three Republican senators have explicitly promised, in Sen. Richard Burr’s (R-NC) words, to “do everything I can do to make sure four years from now, we still got an opening on the Supreme Court” if Clinton prevails. Leading conservative voices, including Heritage Action and the Cato Institute’s primary Supreme Court advocate, also endorse this position. Meanwhile, while other Republican senators (including Burr himself, in a later statement) have tried to distance themselves from Burr’s explicit promise to reject anyone Clinton names to the Supreme Court, the emerging line offers only the illusion of moderation.
As Sen. Marco Rubio (R-FL) told The Guardian, he will oppose any nominee unless the nominee believes that “their job is to apply the constitution, according to its original intent,” a code word for a judges who will reach decisions consistent with the Republican Party’s preferences. (There are no current justices who actually believe that the Constitution should be interpreted “according to its original intent,” and very few scholars have advocated this position since it was largely discredited in the mid-1980s. Justice Samuel Alito, an extraordinarily conservative justice that Rubio presumably does not view as an ideologically unacceptable justice, is not an originalist of any kind.)
If Republicans succeed in holding the current Supreme Court vacancy open for the duration of Clinton’s term, they are already executing a plan that effectively allows them to continue the same judicial attacks on democratic governance that they would have executed if conservative Justice Antonin Scalia were still alive to give them a fifth vote.
When Texas’s Republican attorney general spearheaded a lawsuit challenging many of President Obama’s immigration policies, he filed the case in an obscure border city more than 300 miles from the state’s capital. Doing so all but ensured that the case would be assigned to Judge Andrew Hanen, a judge who often used his opinions to editorialize on why America needs harsher immigration policies.
After the case was indeed assigned to Hanen, the judge took the unusual step of issuing a nationwide injunction blocking the challenged policies. As an added bonus, federal court cases that arise out of Texas appeal to the United States Court of Appeals for the Fifth Circuit, an especially conservative appeals court, and this particular case was randomly assigned to two of the most conservative members of that court.
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https://thinkprogress.org/four-constitutional-crises-america-could-face-soon-after-the-election-e350a87487b5#.gcxt0bu9m
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