Antonin Scalia's death had not even been confirmed yet, but the Clinton campaign was already Googling how one less justice on the Supreme Court could be good news for liberals. Milia Fisher, Hillary For America's Special Assistant to the Chair, sent the following message to John Podesta on Feb. 13, 2016 after a few media outlets started reporting on Scalia's passing.
The New York Times piece Fisher references includes a detailed explanation as to how liberals stand as the political entity most likely to benefit from the new vacancy.
A Supreme Court vacancy would favor liberals, because an eight-member court would often divide 4 to 4, affirming the decisions of the predominantly liberal lower courts.
Ties would be most common if the vacant seat belonged to swing voter Kennedy. If Scalia were the one to leave, Kennedy’s conservative tilt would sometimes generate the ties, barring the occasional walkabout from Chief Justice John Roberts. And if Ginsburg or Breyer left, Kennedy would side with the three remaining liberals often enough to sometimes tie the court in important cases. In addition to his much-touted vote for same-sex marriage in Obergefell v. Hodges, Kennedy has voted with the liberals in civil rights and environmental cases, to rein in partisan redistricting and to grant Guantanamo prisoners the right to challenge their detention.
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Of course, The New York Times was writing this with the understanding a justice would retire, not die. Was this really an appropriate time for the Clinton campaign to be discussing a potential political advantage?
Interestingly, on the same day, Jennifer Palmieri noted how Hillary Clinton should hold off on any comment about their hopes for the Supreme Court until a few days after Scalia's death. Anything before then, Palmieri said, would be "off."
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