As you undoubtedly know by now, Supreme Court Justice Antonin Scalia died unexpectedly during the night of February 12. The circumstances of his death were unclear. He was in a remote area of Texas; he was not in the company of a physician, federal marshals, or any other witnesses; his death was pronounced as being due to “natural causes” (whatever that is) by a justice of the peace over the telephone; the JP did not physically examine the body; and, at the request of the family, no autopsy was performed. Although all of this is legal under Texas law, Mr. Scalia’s prominence raises questions, which will likely never be resolved satisfactorily. Anyone who has seen CSI on tv is aware that there are many ways to murder someone and make it appear “natural.” The conspiracy theorists will have a “ball” for years to come.
That said, the focus is now on selecting his replacement. Scalia was a staunch conservative, a so-called “strict constructionalist.” He favored what is known as “originalism,” that is, when interpreting the constitution one should consider the meaning of the words as they were at the time they were written. He generally rejected the progressive view of a living, breathing constitution that is continually evolving over time. Scalia’s passing gives President Obama a chance to tilt the court toward the progressive point of view.
Clearly, under the constitution President Obama is entitled to nominate whomever he wants whenever he wants. In turn, the Senate is entitled to provide “advice and consent.” Normally, approval would be by a simple majority, but one side or the other can filibuster, in which case it would take 60 votes. This is an example of the system of checks and balances that is an invaluable cornerstone of our system of government. Unfortunately, in cases such as this it raises the possibility of a stymie.
Predictably, the politicians are lining up along party lines. Dems, such as Bernie Sanders, Hillary Clinton, and Charles Schumer are insisting on selecting a replacement immediately. Republicans such as Mitch McConnell, Ted Cruz and Marco Rubio favor waiting until after the inauguration. All of them, as well as others, can and will spin it any way they want, but we all know that the Dems want President Obama to nominate a liberal before he leaves office, while the Repubs want to wait until next year when, they hope, a Repub president will be able to nominate a conservative. Everyone realizes that the next justice would likely swing the ideology of the court one way or the other, possibly for many years to come. Ho hum, politics as usual.
So, what happens when there is a vacancy? Can the Court still function? It is not an ideal situation, but it can and has in the past. Essentially, there are three choices:
- Let the lower court’s decision stand but without the gravitas of a Supreme Court precedent.
- Defer a vote until such time as a replacement has been seated.
- Decide cases in which the vote is not 4-4, and see choice 1 or 2 for those that are.
This is not the first time a justice has died this close to an election when the Senate was under the control of the opposition party. So, how have the other cases worked out? The answer is, it depends. Consider:
- Since 1945, 13 of the 30 nominations that were approved, 43 percent, occurred when the opposing party controlled the Senate, but most of those were not during an election year. Some election year examples would be Louis Brandeis and Anthony Kennedy. So, it can be done.
- Further back, in 1828 Justice Robert Trimble died during a hotly contested election between incumbent John Quincy Adams and challenger Andrew Jackson. After the election, the Senate approved Jackson appointee John Crittenden.
- Perhaps, the situation that parallels the current one most closely occurred in 1844 when Justice Henry Baldwin died during the election campaign between incumbent John Tyler and challenger James Polk. At the time, the relationship between Tyler and the Senate was very contentious (like now). Eight Tyler nominees failed to be approved. Finally, after two years Polk was able to get a nominee approved.
Historically, there have been many examples of Presidential nominees being both delayed and approved due to different circumstances. In my opinion, President Obama’s best chance for getting Senate approval would be to nominate centrists with impeccable credentials who would be acceptable to a broad spectrum of Senators. Then, if they are not approved he can rightfully blame the GOP for delaying. If he nominates hardcore liberals with little chance of approval, you know he is more intent on making a political statement than appointing a justice.
Let the political games begin.