The politics surrounding the vacancy on the U.S. Supreme Court may threaten the notion of judicial impartiality. That is, until you realize how political the high court really is.
Few things are more partisan than a justice's decision to retire, says Artemus Ward, a political scientist at Northern Illinois University.
Prof. Ward has been watching the battle over how to replace Antonin Scalia, who died before retiring. Missing from the discussion, Ward says, is the way all federal judges leave their lifetime appointments.
Ward says Supreme Court justices plan their exits during the terms of like-minded presidents, hoping that president will appoint a like-minded justice.
"Scalia even admitted this in a recent interview," Ward says, referring to a 2012 interview on Fox News Sunday. "He's the first justice to admit that justices are partisan in their retirement decisions," Ward notes, "and it has to do with the Rule of 80."
According to this retirement formula, which we'll explain below, Scalia was eligible for full benefits in 2001.
"And so was Justice Kennedy for that matter," says Ward. "But they chose not to retire during the eight years of George W. Bush's presidency and the eight years of Barack Obama. Scalia was waiting, just as Justice Kennedy is waiting, for a Republican president. Scalia failed in that sense," Ward says. "In hindsight, he should've retired under George W. Bush."
Antonin Scalia died Feb. 13 of natural causes. He was 79.
Here's how the Rule of 80 works: Any federal judge who's 65 or older, and has served on a U.S. bench for 15 years, qualifies for full retirement benefits. The work requirement drops by one year for every year served over the age of 65.
In the interview link above, Ward suggests ways to make retiring from the court less political.
Ward expects the vacancy left by Scalia will last up to two years, depending on who moves into the White House in 2017 and which party controls the Senate. Recently, every Republican on the Senate Judiciary Committee pledged not to hear any of President Obama's nominees. So the Court will continue working with eight justices.
But what if they deadlock on a case?
Ward says this doesn't happen very often. "More than a third of their decisions are unanimous," he says, "and two-thirds are one dissent or two dissents. So in two-thirds of the cases, Justice Scalia's vote would not matter."
And the other third: those cases where Scalia might've made a difference?
Ward says if the Justices determine in conference that there's a four-four split, they'll reschedule that case for argument next year. "They're very reluctant to hand down a four-to-four decision," he says, "or they might rule narrowly on a case to avoid the issue until there are nine members."
As for the politics outside the court, Ward says there's a lot of misinformation about how to fill this vacancy. True, Ward says, the President has a constitutional duty to nominate someone. But the Senate's role, he says, needs clearing up. "The Senate's role is advise and consent," Ward says. "So the Senate can advise the President on who they think he should nominate, and if they think he should nominate."
Ward says the President is free to nominate on his own. "But the Senate has every authority under the Constitution to not act on it," he says.