Replacing Scalia: The Political Dimension

The death today of Supreme Court Justice Antonin Scalia is hugely significant in so many ways – legal, political and even cultural – that I hesitate to try to address it in a blog post so soon after his passing. Conservatives lionized him, of course, but even those who disagreed with his ideological leanings recognized that he was brilliant legal thinker whose influence on the Court’s jurisprudence was immense. I will leave it to the legal scholars to document and assess Scalia’s body of work. Instead, I want to briefly present a few very preliminary thoughts on the political implications of this death.

With Scalia’s death, of course, there is a vacancy on the Supreme Court that must be filled. As readers undoubtedly know, under Article II of the Constitution, this means the President “shall nominate, and by and with the advice and consent of the Senate ….judges of the supreme Court… .” Already, however, several Republican presidential candidates, including Ted Cruz and Marco Rubio, as well as Senate Majority Leader Mitch McConnell,  have said Scalia should not be replaced until after the 2016 election. That is, they are opposed to President Obama nominating Scalia’s replacement. In McConnell’s words, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” This is nonsense, of course. The American people already had a voice, and they exercised it in 2012 by reelecting Barack Obama as president knowing full well that he might be asked to nominate replacements to the highest court in the land. Indeed, Obama has every constitutional and political justification for moving ahead and nominating Scalia’s replacement during his remaining time in office. Note that there is plenty of time for the Senate to hold hearings and vote on Obama’s nominee. Since 1975, the average time between the President’s nomination of a Supreme Court judge and a Senate vote is about 67 days. So time is not a factor here.

However, politics is. And while Democrats are correct to argue for Obama’s right to nominate Scalia’s replacement, it is also true that under the Constitution the Senate has the right to vote that nominee down – or not to vote at all. Moreover, the American people, in their collective wisdom, gave Republicans a Senate majority in 2014 after awarding the presidency to Obama two years earlier. So references to the “will of the people” cut both ways here. Keep in mind as well that research suggests Senators may feel a particular obligation to heeding the “will” of their particular state’s constituents, as opposed to that of the nation as a whole.

Much of the increasingly vitriolic back and forth on my twitter feed is centered on what Obama and the Senate should do, as if there is a bedrock legal or philosophical principle that can determine their course of action. This misses the key point: the Supreme Court, like the Presidency and the Senate, is a political institution, and its member are selected in part for political reasons. Viewed in this way, the question is what the President and the Republican-controlled Senate will do, and why. At this early stage, it seems to me pretty obvious that the President will nominate someone to fill Scalia’s seat, and that the Senate will likely vote that nominee down, or not vote at all. Both are in their right to do so.

Note that there is ample historical precedent for the Senate to refuse to vote on a Supreme Court nominee because of its political opposition to the President, as opposed to the nominee. Thus, on strictly partisan lines, the Democratically-controlled Senate “postponed” a vote on President John Quincy Adams’ nomination of John Crittenden in December, 1828. Similarly, three months before he was to step down as President, James Buchanan nominated Jeremiah Black to the Supreme Court, but the Senate voted Black down. In both instances, the Senate was motivated by its desire to let the president-elect fill the vacancy, rather than accede to the wishes of the outgoing president.

The Whig President John Tyler saw five of his six of his Supreme Court nominees rejected in one year – one by a formal vote, and the others when the Senate postponed action. Similarly, Millard Fillmore saw the Senate take no action on two of his Supreme Court nominees, and a vote on a third nominee was postponed indefinitely. Of course, there were extenuating circumstances affecting both Fillmore and Tyler’s nominations. Each had acceded to the presidency on the death of their predecessors, and neither had sufficient political standing to force the Senate’s hand.

In 1866 President Andrew Johnson nominated his Attorney-General Henry Stanbery to the Supreme Court, but the Republican Congress passed legislation decreasing the number of associate justices in the Supreme Court from eight to six, thus effectively eliminating the vacancy that Stanbery would have filled. Again, that action was partly motivated by political opposition to Johnson.

Perhaps the most analogous situation to what Obama faces today, however, occurred during Lyndon Johnson’s presidency. After announcing that he would not run for reelection, LBJ nominated Abe Fortas, a Supreme Court justice, to replace the retiring Chief Justice Earl Warren, and Homer Thornberry was nominated to take Fortas’ seat. When Fortas withdrew after his nomination was filibustered due to ethical issues, however, Thornberry’s nomination was withdrawn from Senate consideration. It was left for Johnson’s successor Richard Nixon to fill Warren’s spot with Warren Burger.

It is possible, of course, that the Senate and President Obama might find a compromise candidate that both can live with, or perhaps they will agree to a “placeholder” candidate who agrees to step down this fall, or who is old enough that both sides agree the person will be a short-term replacement for Scalia. However, I’m skeptical that this will happen. Why settle for half-a-justice, when a full one seems only an election away? At this point both parties have reason to be optimistic that they will control the Presidency come November, and it is not beyond reason to believe that Democrats can retake a Senate majority next fall. Of course, Republicans have reason to believe they will retain their Senate majority.

In short, both parties have an incentive to make the Court fight an election-year issue. I suspect it won’t change the votes of very many partisans, but it will serve to rally the party’s respective bases. It is possible that if the Senate rejects President Obama’s nominee(s), it will garner increasingly negative views in the public’s eye. On the other hand, congressional job approval is already at its nadir. And in any case, Senators care more about their own approval than they do that of the Senate as an institution. For red-state Senators, opposing Obama’s Supreme Court nominee may make good politics.

So I expect Obama to nominate a justice – probably more than once – and I expect the Senate to refuse to confirm that nomination. If there is any bright spot to this process, however, it is to remind the public that the Supreme Court is a political institution composed of justices appointed in part for their political views.

And now, on to tonight’s Republican debate, in which the topic of Scalia’s replacement will certainly come up.


  1. Obama will nominate but the
    Nomination will not reach the floor.

    The Senate will remain insession to avoid Obama being Obama.

    It will become a major issue of the election.

  2. Shelly – I don’t doubt it will be a major issue, but will it change votes? I’m doubtful. It may rally the bases, however.

  3. Undoubtly Obama will nominate. This will be the media war of the century. The republicans will roll the dice hoping for a win in the presidential election. That is the reality of the situation.

  4. Rolling the dice and gambling that they’ll take the White House and keep the Senate could be risky and leave them with a far more liberal nominee should Hillary win and the Democrats take the Senate. They’ll also be risking the abolition of the filibuster on all nominations should Democrats prevail in November.

    That said, do you think that as time goes on and the fall election gets closer and we get a picture of what is likely to happen, will either side be motivated to cut a deal?

  5. Rob – I suppose if the election context begins to shift to favor one party, the other might be willing to cut a deal. But then what would be the incentive for the side that is poised to win to compromise? My guess is they will say no deal.

  6. If Hillary seems to be going to win and particularly if the Senate seems to be turning Democratic, Republicans will have an incentive to allow Obama to nominate a more moderate replacement to Scalia than what Hillary would be able to in 2017

  7. As Rob points out, I’m not sure this will play out as badly as everyone thinks. The rhetoric will be white-hot to be sure. But we can be fairly confident that the results in November will be in doubt through the summer and into the fall. In that case, Obama and the D’s have to fear a Republican appointee. McConnell and the R’s have to fear the scenario Rob outlines (confirmation by a Democratically controlled Senate). The incentives are in place for Obama to nominate one of the more moderate people he previously considered and shelved for this scenario (Merrick Garland?) and for the Senate Republicans to take credit for his “caving” to them. Republicans are also not going to like the decisions coming out of a 4-4 court the rest of this session.

    I will say this falls apart if Cruz (and maybe Rubio) is the nominee. Cruz will almost certainly demand the Senate not confirm anyone, and as much as his colleagues despise him, they will not want to make their nominee look bad.

    One more scenario, if the Democrat wins in November, one can see a scenario where Obama’s nominee (if sufficiently middle of the road) is confirmed right afterwards in order to avoid a more liberal justice.

  8. Stuart – So, it comes down to whether Senators, and the President, are risk averse or not. It’s an interesting psychological study. Do you take half a justice today for fear of getting nothing down the road?

    The other factor at play, I guess, is the individual calculations Senators will make based on their own reelections needs – are they up for reelection, when, and what do their constituents want?

  9. Pedro – I agree. But that’s a lot of “ifs”. What if it is unclear what’s going to happen in November? Then what do you do? Stuart thinks that under these conditions when the November outcome is uncertain, both sides will have an incentive to compromise in order to avoid a worse outcome under the new President and Senate. Do you agree?

  10. As I think more about it, I think the optimal strategy for Obama is to nominate a “hard to reject” nominee and the optimal strategy for the Republicans is to go very slow on the confirmation process as they wait for better information on the election (who are the nominees, what are the polls like and then who wins).

  11. Matt, Ironic that the R’s are making the argument against an appointment. It is clearly Obama’s responsibility under the Constitution to do so. So are they taking a “living Constitution”, not strict construction position?

    Thanks for the history lesson; the best discussion among all this mornings major pundocrats.

  12. Jack – I agree. It’s hard to argue, as McConnell has tried to do, that Obama shouldn’t nominate someone. Clearly he has the right, if not the obligation, to do so. That doesn’t mean the Senate is obligated to approve Obama’s nominee, however. In the end, each side will be driven by political self-interest. I’m just not entirely sure what strategy that self interest dictates. As you can see by the comments to this post, people are advocating different strategies.

  13. Matthew, I happen to agree with Stuart: I see Obama nominating a moderate, “hard to reject” individual, the Republican Senators dragging their feet “to collect more information” and if they lose the Presidency (and particularly the Senate), voting for said nominee on the “lame-duck” in order to avoid a worse nominee coming from a Democratic-majority Senate in 2017.
    I would add another name to the ones you both have stated: Jane Kelly, from the Eight Circuit of Appeals (unanimous support on her confirmation on 2013, strong support from Chuck Grassley then; hard to see Grassley bottling her up in Committee)

  14. Here’s what I think might happen if Obama nominates a moderate that would be hard to reject and Republicans hold up the nomination. If Democrats win the White House & Senate in November, Obama withdraws the nomination and allows Hillary/Bernie to make the nomination, thus getting a more liberal choice through. It’s what I’d do if I were faced with that kind of obstructionism.

  15. Pedro – I see the logic of what you are saying, but the timing gets tricky, doesn’t it? As I noted in response to Rob, if the Republicans see that they are going to lose the presidency, or in fact have lost it, they will certainly have an incentive to take the deal. But why would the Democrats go along? Won’t they the same factors that might lead the Republicans to decide to take the initial candidate cause the Dem’s to pull that candidate back and let the new Democratic president submit a more liberal option? (This assumes the Dem’s also win the Senate – a big assumption.)

  16. Rob – Yes, that was my point in my initial response to you. So, I guess it gets down to how risk averse both sides are – take half a judge now, or hold out for a potentially better result, at the risk of actually getting a worse one.

  17. Matthew- if Republicans lose the presidency, it becomes highly probable that they lose the Senate too. But even if that is the case, Democrats will probably not have much more than 51-52 seats in the next Congress. They will still be several votes short of the 60 needed to break a Republican filibuster (and there are not eight or nine Republican senators at this point willing to vote for cloture; I can only count two: Collins and Graham). In that scenario, passing the Obama nominee in the lame-duck becomes a reasonable compromise.

  18. Plus, withdrawing Obama’s nominee and substituting it by a Clinton one (I simply don’t envision President Sanders, sorry) would be seen as really craven. And at that point the Democratic base will have a huge emotional investment with said nominee, after months and months of confirmation battles.

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