Scalia’s Last Laugh: The Battle Begins
FlaglerLive | February 14, 2016
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.
Obama 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