Monday, October 25, 2004

The Ultimate Supreme Court Doomsday Scenario

Boy, just when you think you've imagined every potentially legalistic scenario fot the election, another one comes up. Chief Justice Rehnquist has been hospitalized with thyroid cancer. While the prognosis is reasonable for an 80-year-old man, it raises this possibility: suppose a Supreme Court justice dies or is incapacitated between now and January 20th? And just suppose it's one of Bush's personal buddies on the court, like Rehnquist? And just suppose another election-deciding case comes up before the Supreme Court, such as Colorado's Amendment 36 (the initiative that would split the electoral vote strictly proportionately in Colorado starting with this election, which would almost certainly cost the "winner" of Colorado 4 electoral votes)?

The Senate is currently controlled by the Republicans, but control might shift to the Dems with the election results (Ds are poised to pick up seats in Alaska, Oklahoma, and possibly Kentucky, of all places). This would set the following rushed timetable off, hypothetically: the R's get their Supreme Court justice to resign right away if ill. A nominee is named and the Senate skips confirmation hearings and gets right to the votes. This would set up the mother of all fillibusters by the D's to prevent the justice from being confirmed before the January 2nd swearing-in of the new Senate. Whatever case the Supreme Court has would be heard, but might be voted on 4-4, in which case the nature of the precedent being requested by the appellate would determine the disposition of the case. (There are no tiebreakers in the Supreme Court; this is why, despite the obvious conflicts of interest of at least two of the Supreme Court justices last time, Scalia and Thomas, in having family members in the employ of the Bush campaign, there were no recusals.)

How then would the victor of the election be determined? I have no idea, but you can guarantee that it will be extra-constitutional.

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