Scalia's death likely to affect McDonnell, redistricting decisions

Theresa Clift
Contact Reportertclift@dailypress.com
Scalia's death may leave redistricting ruling, McDonnell conviction in place.

The death of U.S. Supreme Court Justice Antonin Scalia greatly decreases the chances of Gov. Bob McDonnell having his conviction on corruption charges dismissed and of new court-ordered congressional district boundaries being tossed out, three Virginia professors said Sunday.

"Both cases will still be argued before the court, I think," said Steve Farnsworth, a political science professor at the University of Mary Washington in Fredericksburg. "But the chances of McDonnell winning and chances of Hampton Roads districts going back to previous lines are both pretty unlikely."

Scalia's death Saturday shifts the balance of power on the high court, which now has four steadfast liberals and four conservatives — two of whom sometimes vote with the liberals.

President Barack Obama said he would nominate a replacement, but Senate Majority Leader Mitch McConnell, R-Kentucky, said the Senate will not confirm a nominee until a new president takes office next January.

In the meantime, the eight-member court can continue to hear cases and make decisions — including the redistricting and McDonnell cases, which are expected to be heard in the coming months.

If the members split four to four on a case, the ruling affirms the decision of the appeals court, but does not set a legal precedent.

In the McDonnell case, a tie would mean the 4th Circuit Court of Appeals' July ruling to uphold his corruption conviction would be affirmed.

In January, the U.S. Supreme Court announced it would review the McDonnell case.

"The judges who have ruled so far in the McDonnell case have consistently said he should go to jail," Farnsworth said. "It'll be a hard case for the McDonnell team to go before the court without Scalia."

University of Richmond law professor Carl Tobias agreed.

"Now he needs five votes. It's harder to get five, I think, especially on this issue," Tobias said. "The 4th Circuit was a unanimous and highly respected opinion."

John C. Jeffries Jr., a law professor at the University of Virginia School of Law, said it's impossible to say exactly what the impact of Scalia's death would be on the two cases, but that it certainly increases the likelihood of a Supreme Court tie — bad news for McDonnell.

"The only clear thing is that Scalia's absence increases the chance of an evenly divided Court," Jeffries said in an email. "McDonnell would be the loser if that happened."

In the redistricting case, a high court tie would affirm new boundaries for the 1st, 2nd, 3rd and 4th congressional districts.

In January, a U.S. Circuit Court of Appeals judge ordered new lines for those districts after ruling that the General Assembly had illegally packed black voters into the 3rd District, diluting their voting power elsewhere.

The new lines place all of Newport News in one district, the 3rd, which has long been represented by Robert C. "Bobby" Scott, D-Newport News.

They make the 4th District, now represented by J. Randy Forbes, R-Chesapeake, much more competitive than it has been. In response, Forbes has announced that he will run in the 2nd District, where Rep. Scott Rigell, R-Virginia Beach, is retiring.

Earlier this month, the U.S. Supreme Court declined to issue a stay, which would have blocked the use of the new district lines until it issued a ruling in the case.

The Supreme Court is far less likely to overturn the new lines without Scalia, Farnsworth said.

"To throw out the new lines would take five votes (including) one liberal defection," he said.

Liberal defections are rare, Farnsworth said.

Scalia was not only a reliable conservative vote, but also a powerful leader on the court, with influence over the other conservative justices, Tobias said.

"As a leader on the court, he may have taken other justices with him or persuaded them," Tobias said.

The court could hear arguments next month in the redistricting case.

Scalia's death will not likely affect the high court's schedule, said Farnsworth.

"The schedule previously agreed to would be more or less the schedule kept, but the ability for conservatives to win is dramatically undermined," Farnsworth said.

It's unlikely that either case would come back to the Supreme Court after a new member is named, Farnsworth said.

"Most of the time these cases get one opportunity before the Supreme Court," he said.

On a national level, Scalia's death could affect many high-stakes political issues, including health care, abortion and immigration.

"On many of the left/right hot-button issues of politics today, Scalia's death really stops conservative judicial lawmaking in its tracks," Farnsworth said.

Clift can be reached by phone at 757-247-7870.

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