The death of Supreme Court Justice Antonin Scalia has triggered a curious and contentious constitutional debate about his replacement.
Before Scalia’s corpse had turned cold, Senate Republicans served notice to President Obama not to bother sending up a nomination. They want to wait so the next President, who won’t be sworn in until early next year, can make the selection. Obama fired back that he plans to nominate a qualified replacement, and he expects the Senate to hold confirmation hearings and a vote.
Senate Majority Leader Mitch McConnell cited an 80-year-old precedent for presidents to demur on filling Supreme Court vacancies in the final year of their term in office. A media fact checker disputed such a precedent, noting that President Reagan’s nominee, Anthony Kennedy, was confirmed in 1988, a presidential election year, on a unanimous vote by a Democratically controlled Senate. Kennedy was confirmed after the Senate rejected the earlier nomination of Robert Bork.
Obama, who taught constitutional law at Columbia University earlier in his career, said it was his duty to nominate someone to fill a Supreme Court vacancy and the Senate’s duty to consider and vote on the nominee. He said there were no exceptions or limitations noted in the Constitution that apply to the final year of a presidential term.
The irony in this debate is that whoever succeeds Scalia will be the swing vote on a divided court that will decide whether Obama exceeded his constitutional authority in issuing executive orders.
The net effect of the tussle over whether there will be a vote or not has been to add another rancorous layer of politics to an already inflamed political environment. Some Obama haters went so far as to speculate on social media that Obama was responsible for murdering Scalia. Medical reports indicate Scalia died of a heart attack while at a remote hunting lodge in Texas.
No question that stakes are high on who will ultimately replace Scalia, who was a towering figure among conservatives who liked his legal reasoning and his colorful writing style. For now, the court has four liberal-leaning justices and four conservative-leaning justices with no ability to break a tie. In case of ties, the Supreme Court issues in effect no ruling, which would let stand lower court decisions, even if they conflict.
One legal scholar said Scalia’s untimely death will affect cases that already have been argued before the court. Scalia’s vote on those cases, the scholar said, can’t be counted if he isn’t still on the high court bench.
The issue of a lame-duck year Supreme Court nomination instantly became fodder on the presidential campaign trail, with all Republicans except Jeb Bush, urging no Senate vote and Democrats calling a GOP-imposed delay a constitutional affront.
There was an unexpected, though perhaps unsurprising, trickle down effect of the argument on races for the Senate this year. Twenty-four Republicans face re-election this year, and they may be uneasy pledging to stonewall a presidential Supreme Court nomination before finding out who is actually nominated. Supreme Court watchers have identified at least two potential nominees who were vetted in recent Senate confirmation hearings and voted in as federal judges on unanimous Senate votes.
One of the most curious pieces of speculation that bubbled up in the rough-and-tumble follow-up to Scalia’s death was that a delay in replacing the former Justice could paradoxically lead to Obama getting the nomination if a Democrat is elected President.