SCOTUS Odds – Who Will Replace Scalia, and When?

The Republican Party has never been big on gambling.

Republicans passed the Unlawful Internet Gambling Enforcement Act in 2006; they have dug in their heels on the legalization of sports betting; and, in state after state, they are cracking down on fantasy sports websites.

But the GOP is taking a huge gamble of its own by announcing that it will not even consider anyone that President Obama would nominate to replace Antonin Scalia on the Supreme Court.

Scalia’s toast and coffee were still warm when Republicans warned Obama – who has more than 11 months left on his second and final term – that he shouldn’t even bother sending a nominee to the Senate. According to the GOP, if Obama has the temerity to actually send a name to the Senate, Republicans are going to employ a prevent defense: no hearing, no vote, no shoes, no service, no nothing.

The Republican thought process goes something like this:

1. We don’t like anything Obama does, so we’re not going to like whoever he sends up to the Hill.
2. If we flat-out stonewall (or, at minimum, slow-walk) long enough, we can get our own guy in the White House, and he’ll send us someone we really, really like.

Senate Majority Leader Mitch McConnell is the head cheerleader for the Doing Nothing is Better Than Doing Something crowd. He was the guy, after all, who vowed to make Obama a one-term president (whoops) and has been taking a daily ration of excrement from the right wing for actually allowing the Senate to pass an occasional budget bill. Standing up to Obama would enable McConnell to recapture some street cred among the party’s angry base, which can’t understand how Mitch has made it this far in life without a spine.

Just one problem – there is no guarantee that, a year from now, a Republican will be in the Oval Office searching dossiers for the next Scalia. Democrats are slight favorites to keep the presidency and have more than a fighting chance to regain the Senate. (Republicans are defending so many seats that they can feel ice cracking underneath them.) If Republicans stiff-arm a moderate SCOTUS nominee, the payback from a revenge-seeking President Clinton could come in the form of a dreaded “activist” that Republicans might be helpless to stop.

So saying “no” now is a huge gamble for Republicans, who aren’t that comfortable rolling the bones at a craps pit.

Odds on who President Obama will nominate to replace Scalia:

Sri Srinivasan: 2/1

The nomination of the 48-year-old would be hard to reject; the Federal Court of Appeals judge was confirmed unanimously in 2013 by the Senate.

Jane Kelly: 5/1

Kelly is from Iowa, and so is Senate Judiciary Committee Chairman Chuck Grassley.

Amy Klobuchar: 7/1

The senior Senator from Minnesota has actually written a book about Scalia.

Deval Patrick: 15/1

The former Massachusetts governor is Obama’s BFF, and they share the same world view.

Odds that the Scalia’s replacement is appointed by Obama or by …

Obama: 7/6

the next president: 6/7

Odds the following cases are decided in the Republicans’ favor:

Evenwel vs. Abbott (voting rights): 15/1

At issue is whether a district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause of the Constitution allows states to use total population (versus voter population) when apportioning state legislative districts. Republicans want the principle overturned in favor of recognizing voters rather than total population; this would enable districts to be drawn in such a way as to favor older, whiter, non-urban voters. The case was argued in late December.

Even if the four conservatives on the court band together, the liberal branch is extremely unlikely to cede a vote. A 4-4 split, which is the best conservatives could hope for, would result in the lower court decision being upheld. (An 8-0 or 7-1 outcome is more likely.)

Whole Woman’s Health v. Hellerstedt (abortion): 3/2

Pro-choice advocates are seeking to overturn two aspects of a Texas law – one which requires doctors to have admitting privileges at a hospital within 30 miles of a clinic where an abortion is performed, and another which requires that clinics meet surgical center standards. Conservatives are asking the Supreme Court to uphold a favorable decision by a lower court. The case will be argued on March 2.

The Plaintiffs need five of the eight to overturn the Texas law, and swing vote Anthony Kennedy has tended to look favorably on abortion restrictions.

United States vs. Texas (immigration): 10/11

This case has been winding its way through the courts since President Obama announced a plan to defer action on deporting illegal immigrants who are the children of American citizens. Lower courts have agreed with the state of Texas, issuing and upholding an injunction preventing full implementation of the program. Conservatives argue that the injunction should stand, and need just a 4-4 deadlock to keep it in place. No date has yet been set for arguments.

Kennedy has a mixed record on immigration issues; but he did once vote that the government could not automatically deport an illegal immigrant convicted of a crime.