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Scalia’s Last Laugh: The Battle Begins

| February 14, 2016

antonin scalia nominating process

Antonin Scalia’s death does not remove his influence from the coming nominating process. (United States Mission Geneva)

Though first stopping to offer family and friends condolences after news broke on Saturday that U.S. Supreme Court Justice Antonin Scalia had unexpectedly died, the political world in the United States wasted no time in drawing the battle lines over the key who andwhen questions regarding the successor to the empty seat.

Within hours of the news of Scalia’s death, high-profile Republicans—including Senate Majority Leader Mitch McConnell and leading contenders for the GOP presidential nomination—all issued statements arguing that it should be the next president, not President Obama, who should appoint the next Justice.

“The American people‎ should have a voice in the selection of their next Supreme Court Justice,” said Sen. McConnell in a statement on Saturday. “Therefore, this vacancy should not be filled until we have a new President.”

As the Huffington Post reports, it was just “mere minutes after the Scalia news broke” when “Conn Carroll, a spokesman for Sen. Mike Lee (R-Utah), who sits on the Judiciary Committee — through which any Supreme Court nominee must go — placed the chances of a replacement at nil.”

According to a tweet sent by Carroll: “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?”

When he heard to the news, presidential canidate Sen. Ted Cruz tweeted: “Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.”

Leading Senate Democrats, of course, also weighed in. Sen. Patrick Leahy (D-Vt.), ranking member of the judiciary committee, rejected Republican arguments by stating, “I hope that no one will use this sad news to suggest that the President or the Senate should not perform its constitutional duty.”

During Saturday night’s Republican presidential debate in South Carolina, hosted by CBS News, Scalia’s death and what it means for the future makeup of the court dominated the early rounds. Most agreed with the idea that Republicans in the Senate should do everything possible to make sure Obama not be able to push through his chosen nominee.

commondreams-250pxObama himself, however, also appeared live from the White House on Saturday. He expressed his condolences to Scalia’s family but also let it be known that he had no intention of abdicating his responsibility to make the appointment, saying he would make one “in due time” and that he expects Congress to give his ultimate nominee a “fair hearing and a timely vote.”

The responsibility to make such appointments, he said, was “something I take seriously, as should everyone. They’re bigger than any one party. They’re about our democracy.”

Given the contentious and high-stakes implications of appointing a Supreme Court Justice during his last year in office—especially against the backdrop of a highly energized and polarized electorate focused more on the issue than usual—legal experts, historians of the court, and political observers argue that Obama’s decision to appoint an appropriate successor, and his ability to get that nominee through the Senate, will be both difficult and enormously consequential.

As William Blum, political historian and author, wrote in this analysis on Saturday evening: “Politically, Scalia’s passing will unleash a pitched battle on two fronts: first, in the fight to name his successor, and second, as an issue in the upcoming presidential elections. In the coming weeks and months, we can expect to hear a rising and increasingly hysterical chorus of Republicans demanding that President Obama refrain from nominating Scalia’s successor. Indeed, if initial press reports are any indication, the trench warfare has already begun. But with roughly 11 months remaining in his term, Obama undoubtedly will move forward. Anyone he names will surely be more liberal than Scalia, and anyone he names will tip the balance of the court.”

Republicans are basically arguing that the existence of the presidential campaign season should strip Obama of his right to appoint a new Justice, calling instead to make the election a kindof referendum on the empty seat. But according to Amy Howe, a legal scholar and write for the SCOTUS, there is no convincingly sound or historical precedent for making such claims.

“The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election,” writes Howe. Since at least 1900, she continues, “there were several nominations and confirmations of Justices during presidential election years.”

Howe later explains that even though there were two times in the twentieth century when “presidents were not able to nominate and confirm a successor during an election year” neither of these examples reflect “a practice of leaving a seat open on the Supreme Court until after the election.”

And as John Nichols writes at The Nation, there is simply no question that Obama’s has the prerogative:

The Constitution does not say that presidents may nominate justices. It says they shall do so.

The Constitution does not say that presidents are limited in this duty by the timing when a vacancy occurs. There is no footnote that says presidents shall only perform their duties in their first terms. Nor is there a footnote that says members of the Senate shall only provide appropriate advice and consent when a president is in his or her first term. And there is certainly no language that suggests that a president’s nominee to the Court must parallel the ideology of the justice he or she would replace.

Citing date from the Congressional Research Service, the Huffington Post‘s Amanda Terkelreports that “since the Ford administration, it has taken the Senate an average of 2.2 months for Supreme Court nominees to get a floor vote after they’re nominated.”

Meanwhile, New Yorker staff writer John Cassidy said he would leave it to constitutional experts to parse some of the history and judicial arguments but that in “political terms” there is no way that operatives in both parties are not scheming to take advantage of the situation:

It is well known, and accepted on both sides, that the Democrats’ hopes of holding on to the White House hinge on getting a high voter turnout on November 8th. If you were a Democratic strategist trying to maximize turnout, what would you most like to see? One possibility, surely, is the prospect of the election being transformed into a referendum on the President versus the do-nothing Republican Congress. […]

If the Republicans block the nomination without properly considering it, which also seems likely, a huge political row will ensue, enveloping the Presidential race. (In fact, it has already done that, as the Republican debate proved.) Come summer and fall, the Democratic candidate, be it Hillary Clinton or Bernie Sanders, will be able to go the country and appeal for support in preventing the Republicans from humiliating President Obama and making a mockery of democracy.

In remarks on Saturday night given at a fundraiser for the Colorado Democratic Party in Denver, both Democratic presidential candidates rejected the idea of Republican obstructionism.

“It appears that some of my Republican colleagues in the Senate have a very interesting view of our Constitution of the United States,” said Bernie Sanders. “Apparently, they believe that the Constitution does not allow a Democratic president to bring forth a nominee to replace Justice Scalia. I strongly disagree with that.”

Sanders continued, “I very much hope that President Obama will bring forth a strong nominee and that we can get that nominee confirmed as soon as possible. The Supreme Court of the United States has nine members, not eight. We need that ninth member.”

Hillary Clinton offered similar sentiments.  “It is outrageous that Republicans in the Senate and on the campaign trail have already pledged to block any replacement that President Obama nominates,” Clinton declared. “Barack Obama is the president of the United States until Jan. 20, 2017. That is a fact, my friends, whether Republicans like it or not.”

–Jon Queally, Common Dreams

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30 Responses for “Scalia’s Last Laugh: The Battle Begins”

  1. confidential says:

    President Obama Shall nominate the replacement Justice! Republicans need shut to up and confirm! And if not, then POTUS maybe can use Executive Power.

  2. we the people says:

    We the people will not put up with more politicians using their power to shut down goverment procedures for their own personal intrests. You will vote on an appointed Justice by the sitting president, or there is no way we will vote for a canidate of that party. We are sick of the bickering and getting nothing done. We need a functional supreme court, we are suppose to be the greatest country but our politicians make us look like idiots. YALL NEED TO “GIT R DONE!”

  3. Ken Dodge says:

    Clearly a case of Republican candidates casting their base as “low information” voters.

  4. yankee says:

    Obama will do his job as he has for the past 7 years. Republicans will whine about how they are the party of the constitution while refusing to do theirs just as they have since the took control of congress.

    Longest vacancy in the history of the court is under 150 days. GOP really thinks we can go just about a full year?

    Cruz and Rubio cant be bothered to make it to DC to take part in voting but you can bet cruz will find the time to read green eggs and ham and praise duck dynasty for hours at a time.

  5. Sandra Reynolds says:

    The Republicans have taken their obstructionism too far. So if Hillary is elected will they deny her the right to choose a replacement also?

  6. Barry Hartmann says:

    Just what we need another executive order from the Obama dictatorship. Yea that’s democracy! Executive orders!

  7. I/M/O says:

    I guess the Democrats now regret passing that Resolution in 2007 “No nominations in an election year.”

    Ironic how hings come back to bite you.

  8. I/M/O says:

    Sorry it was 1960 not 2007.

    Read it and weep, Democrats. The shoe is on the other foot. David Bernstein at the Washington Post’s Volokh Conspiracy blog:

    Thanks to a VC commenter, I discovered that in August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.” Each of President Eisenhower’s SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment.

    The GOP opposed this, of course. Hypocrisy goes two ways. But the majority won.

    As it should this time.

    Read more:
    Follow us: @AmericanThinker on Twitter | AmericanThinker on Facebook

  9. Flatsflyer says:

    The Republican Party should scare the shit out of all Citizens. They want what they want regardless of the Constitution and their responsibilities. If they are not willing to do their jobs then they should resign.

  10. Layla says:

    He isn’t a potus, he’s a dictator.

  11. r&r says:

    If Obama appoints someone it’ll be a muslim liberal person who can continue to ruin this country as Obama has for the last seven years. The GOP better do their job and put a stop to this insanity.

  12. just me says:

    confidential says:

    February 14, 2016 at 5:54 pm

    President Obama Shall nominate the replacement Justice! Republicans need shut to up and confirm! And if not, then POTUS maybe can use Executive Power.

    This is the mindset of our socialist left! the presidency (well as long as its a far left wing D) is SUPERIOR to Congress, the supreme Court and the Constitution itself ! Congress should NOT shut up and confirm ! It is their duty to ADVISE the president on any nomination and when the president picks one they have the power of conformation it is NOT just a rubberstamp to what ever he wants. May be the Senate should give him the list of acceptable nominees’ he then can shut up and pick from that ???

  13. just me says:

    We4 have seen in the past when a far left justice passes the left demand another far left justice why not in this case a true constitutionalist justice???

  14. Common Sense says:

    It is so ironic that the Republicans are saying the people should have a voice in the selection, they seem to forget that we did, twice, when we elected this President. He has every right to nominate someone. This is just more of their obstructionist attitude.

    And how arrogant to imply the voice of the people comes only from Republicans.

  15. Sherry says:

    “Twice elected” President Obama has already said he will not nominate a candidate for the Supreme Court while the Senate is in “recess”. Unless the Senate plans to stay in “recess” for almost an entire year, our President has a Congressional responsibility and every right to choose a successor for Justice Scalia.

    The horrific obstructionists in Congress need to fulfill on their Congressional responsibilities and act as elected officials. . . they are obligated to consider and strive to confirm all viable nominees. Just listen to the comments from the Republican Presidential candidates. . . doing everything they can to stop our Federal government in its tracks, then screaming about nothing getting done, and blaming it all on President Obama.

    We need to do much more than vote for President. . . we need to get out the vote to elect Congressional representatives who will actually “GOVERN”, instead of “OBSTRUCT”!!!

  16. Geezer says:

    “He isn’t a potus, he’s a dictator.”

    I have to disagree – he lacks passion, and comes off as excessively professorial
    to a largely uneducated poplace. But still – he’s a heck of a lot better than Romney
    could ever hope to have been.

  17. Yellowstone says:

    For those of us old enough to remember the traditional opening line of many circuses is the phrase “Ladies and gentlemen, boys and girls, children of all ages…. ” applies here as well.
    What we need now is a Clown Car and Emmitt Kelly to show up as the new Majority Leader of the Senate.
    Talk about an autocratic (not democratic) system – this session of Congress will prove once again that party affiliation is far, far more important than the lives of 330 million Americans.
    And to think WE voted these ‘actors’ into office – and WE CONTINUE TO PAY THEIR SALARIES!!
    Vote this time!

  18. Shrimpley Pibbles says:

    Don’t worry my republican friends, I’m sure that your politicians will do their best to keep whoever is nominated by the sitting president of the united states locked up in committee reviews for months and months while they hold their 512th vote to appeal obamacare and continue to rake in millions in personal income thanks to allowed insider trading. And for the 0bummer executive order crowd, don’t worry. He hasn’t even come close to the number of executive orders passed by Reagan or GW, hope that helps.

    On that note, I hope they remember to stake Scalia before burial so he doesn’t rise up like some originalist vampire, hell-bent on sucking the life out of a living constitution.

  19. Anonymous says:

    Its so ironic that liberals are saying this president should get WHATEVER he wants ! When ds controlled congress then they where all for Congresses “obstructionist attitude” with bushes Wants. If this or any president put forth a unworthy nominee in the eyes of the senate they have NO mandate to confirm.

  20. Sandra Reynolds says:

    Please explain “unworthy”.

  21. confidential says:

    Stop obstructionism and get down to govern GOP congress and senate majority!. You guys don’t get it yet that POTUS was elected and re-elected?
    Now I hear POTUS brilliant idea to nominate whether a Black, Asian or Hindu judge. If I was him I go with a Black judge because when GOP senate and congress refuses to confirm then we know who is going to get those votes in the General Elections!
    This is shameful, because when younger Bush was POTUS, DNC in congress and senate went along and confirmed his appointees and proposals and that included the useless Iraq war.

  22. Fredrick says:

    Why are the libs in such a hurry? Could it be they are a bit concerned that Either the Liar or the Socialist may not win the White House??

    Let Obama nominate…. it’s up to Senate to approve or disprove.

    The hypocrisy from the libs is comical right now.

  23. alp says:

    Sorry Republicans, it did NOT happen in 2007 or in 1960 or ever.

    “Take note of the one key word that is missing in the American Thinker’s version of that headline: “recess.” So their whole argument that Democrats in 1960 passed a resolution objecting to any SCOTUS appointments in an election year is a “pants on fire” level lie. It is even debunked by the op-ed Lifson refers his readers to. And there’s the fact that current Justice Anthony Kennedy was approved by the Senate in 1988, the last year of Ronald Reagan’s term. But apparently there was no complaint from Democrats over that, since absolutely nobody is mentioning it. Instead, Bernstein and Lifson have to go back to 1960 to stir up this non-issue.”

    Excerpt from:

  24. Sandra Reynolds says:

    Who said the “Libs” are in a hurry? Not Obama. It was McConnell and his cronies who came out first and said they were going to stall this. Get off Fox Moron news and learn something.

  25. Knightwatch says:

    I love it when Republicans just spew hypocrisy. First Rubio’s disinformation about the so-called “rule” that no one should nominate a Justice in an election year. Actually, it happens quite often. In fact, six justices have been nominated in an election year since 1900, most recently Justice Kennedy, nominated by Reagan in his last year in office. BTW, Kennedy was confirmed by a Democratic-controlled Senate.

    Then there’s the nonsense from Crazy Cruze put out about “the people should have a say”. Well, the people did, and they elected President Obama who, under our Constitution, gets to nominate anyone he wants.

    Oh, yeah, conservatives, chew (and choke) on this. You lost a reliable and articulate ultra-conservative justice. With the SCOTUS now split evenly, liberals and conservatives, the best you can do is a tie vote, If there is a tie vote lower court decisions remain law. And lower court decisions, spearheaded by Obama’s appointments, have favored the more progressive side of issues. If Justice Kennedy, a moderate, backs the liberal justices as he occasionally does, or perhaps even Chief Justice Roberts (remember gay marriage rights?), an eight-justice court has a pretty good chance of favoring liberal legal issues. Actually, It’s pretty much win-win for liberals no matter what conservative obstructionists do. And then we get Hillary!

  26. Kevin says:

    Oh the hypocrisy of Mitch McConnell who says the people must decide the next Supreme Court Justice…the people have already spoken (twice 2008 & 2012 Presidential elections). We have a President and he is still our duly elected Comander in Chief and constitutionally designated appointer in chief and the Senate should meet their constitutional duty and provide the advice and consent to this President’s nominee. Of course if the past seven years are any indication, Republicans will use the excuse of politics to continue their racial bias against this man and the ugly sin of our nation’s past will continue. I am not playing the race card here I am playing the reality card. Look at all the actions of Republicans with this President that were taken in the name of political disagreement yet in the history of our nation were never done to any white president of any party. Blatant, unadulterated racism. And for the record, I am white/Caucasian but a true believer in our Constitution unlike those Republicans who veil themselves in the cloak of the Constitution but actually are draped in white sheets.

  27. beachcomberT says:

    Republicans are taking a big risk if they succeed in delaying the appointment. I sense a deal being worked out between Hillary and Obama, even though they hate each other. Obama will mobilize the black vote for Hillary, in return for getting appointed to SCOTUS after she is inaugurated. Would Senate Republicans dare to block the nomination of an ex-president? Perhaps, but it would turn the GOP into a white splinter party.

  28. YankeeExPat says:


    “but it would turn the GOP into a white splinter party.”

    I think the proper term would be sphincter party !

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