As everyone knows by now, US Supreme Court Associate Justice Antonin Scalia died over the weekend. There are some who smell a conspiracy here, but there is nothing out of the ordinary when a 79 year old dies of a heart attack. That is simply the natural life cycle.

This leaves on the court:

• John Roberts – Republican – 61
• Anthony Kennedy – Republican – 79
• Clarence Thomas – Republican – 67
• Samuel Alito – Republican – 65
• Ruth Bader Ginsburg – Democrat – 82
• Stephen Breyer – Democrat – 77
• Sonia Sotomayor – Democrat – 61
• Elena Kagan – Democrat – 55

That’s four Republican appointees and four Democrat appointees. On any party line votes, we’d have a hung court unable to render a decision, so realistically a lot of cases pending before them will not get rulings. When you consider the fact that another three justices are in their late seventies or eighties, it’s important that Scalia be replaced soon since those three will likely retire or die in the next few years. This also means that the next president will probably get three appointments, assuming Scalia is replaced this year.

In the event that Obama gets an appointment confirmed we would have a court with a 5-4 split favoring Democrat appointees. Then who ever wins this year’s presidential election will get to finish up his or her first term with a probable 6-3 split in on the court in his or her party’s favor. At least that’s how it should work.

Unfortunately in 2008 congressional Republicans decided to take being the opposition party a bit too seriously and became the party of “no”. They don’t stand for anything, they can’t legislate, they just say no. Since the GOP took the Senate in 2011 (when they won the 2010 midterm) we have effectively not had a congress. They are now saying that they won’t let Obama appoint anyone to the Supreme Court. This is crazy because if he doesn’t nominate someone he would be failing to perform one of his Constitutionally mandated duties and we need to get the bench filled so SCOTUS can actually issue rulings.

I suspect they are hoping that an open seat on the Supreme Court might increase voter turnout and energize their base. They may also be hoping that they can win and get a 7-2 court in the next few years. If they lose the election, it would still be a 6-3 court against them, but that wouldn’t be any different than if they let Obama do an appointment.

However, this could seriously backfire on them. Let’s say that Bernie Sanders wins and Democrats retake the Senate. Sanders would be able to get four of the most liberal people appointed to the court since FDR since Senate Democrats would be able to approve them. At least if the Senate Republicans were willing to go through the process they could make sure that Obama appoints a relatively moderate Justice.

What’s particularly disappointing here is that since we haven’t had a functioning congress for the last five years we now no longer have a functioning Supreme Court. This leaves us with just one branch of government. The irony is that Republicans have been painting Obama as a power hungry dictator, when in reality they have made him a defacto dictator since they have yielded all federal power to the President. Obama has no choice but to try to keep the government functioning.