The most exciting and terrifying American election season in decades, with Donald Trump's insurgency tearing apart the Republican Party and Bernie Sanders making Hillary Clinton's inevitable nomination look ever more evitable, just had another incendiary plot twist added to the mix with the death of Supreme Court Justice Antonin Scalia.
In Canada, nominating a Supreme Court justice has usually been a straightforward affair. This is not because Canadians are better or wiser than Americans, but because our parliamentary system concentrates power and decision-making. In the U.S., in contrast, the system is designed to do the opposite. President Barack Obama, a Democrat, has the power to nominate a new justice – but a Senate controlled by the Republicans gets to say yea or nay to his choice. And the GOP is not likely to approve of anyone put forward by Mr. Obama. Its core voters might revolt. And if the political shoe were on the other foot, the story would likely be the same.
Supreme Courts in both Canada and the U.S. are exceptionally powerful bodies, the branch of government that is largely unchecked in the system of checks and balances. And judges in the U.S. are nominated for life – and tend to remain on the bench for decades. It explains why, in America's ever more deeply divided political culture, Supreme Court nominations can lead to scorched-earth warfare.
Back in the late 1987, the Democrat-controlled Senate blocked the nomination of Robert Bork, a conservative jurist in the mold of Mr. Scalia. Mr. Bork was "borked" – and American law is very different today because of it. The judge president Ronald Reagan nominated to replace him was Justice Anthony Kennedy, who still sits on the Supreme Court. He has often been a moderate swing vote – and a disappointment to conservatives.
All of which explains why Republicans are promising to stop any name put forward by Mr. Obama. But he may yet turn that to advantage. If he nominates, say, a highly qualified jurist who just happens to be Hispanic and female, and the Republicans spend months blocking her, who will be the winner? It might just motivate the Democratic base, and some swing voters, in the November election. In a town where everything is political, it would be par for the course.