What Scalia’s Death Means For Business

Democrats tried to argue that Senate failure to confirm a nominee this year would be an historic abdication of its constitutional responsibility, and inflame independents. But nearly all Republicans – including those who need the support of independents for re-election this year, like Rob Portman of Ohio – say the choice of a new justice should wait until after the election.

This was to be expected. Before Scalia’s death, the court was divided 5-4 on a host of hot button political issues, and it was always highly unlikely that the Republican-run Senate would approve a lifetime appointment who would tilt the balance toward Democrats on the eve of an election. Anyone who thinks Democrats would act differently if the tables were turned should read the comments of Senator Chuck Schumer in 2007, here.

What does an eight-person court over the next year mean for business? That’s not entirely clear, since a 4-4 split essentially puts the decision power in the hands of the lower courts. But as Fortune’s Jeff John Roberts reports this morning, Scalia’s absence could effect key decisions on union organizing, class action lawsuits, environmental regulations, immigration, and intellectual property – so no small thing.

Meanwhile, a delay in the appointment until next year will have big implications for the next president. Even in normal times, Supreme Court confirmations are bruising battles that consume huge amounts of political energy. For a new president, that’s unfortunate. The opportunity to enact major legislation – be it a Republican tax reform or a Democratic infrastructure initiative – is greatest in the early days. Those days now may be consumed by a confirmation fight.

In short, Scalia’s death unfortunately feeds the dysfunction in Washington. The need for a President who can lead through the morass is that much greater.

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