Tag Archives: Scalia

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.