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There Is About to Be a Nasty Fight Over Replacing Antonin Scalia on the Supreme Court

Republicans are promising they will block whomever Obama appoints in place of the deceased justice. In political terms, this might not be a bad thing for Democrats after all.
February 14, 2016, 2:00am
A file photo dated 5 October 2011 shows Supreme Court Justice Antonin Scalia making a rare appearance on Capitol Hill to testify before a Senate Judiciary Committee hearing. Photo by Jim Lo Scalzo / EPA

Immediately after the news broke that Supreme Court Justice Antonin Scalia died Saturday evening, it became clear that the fight to replace the leading conservative justice on the bench is going to be a long and nasty one.

Senate Majority Leader Mitch McConnell issued a statement minutes after Scalia's death had been confirmed that his vacancy should not be filled until the next president has been chosen. His fellow Republicans, presidential candidates Marco Rubio and Ted Cruz, also said the appointment should be delayed until the election is over.

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Senate Minority Leader Harry Reid made it clear he was prepared for the fight. "It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat," he said in a statement. "Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential Constitutional responsibilities."

In Obama's remarks following Scalia's death, the president made it clear that he intends to put forth a nominee and expects the Senate to fulfill its responsibility by giving the nominee a "fair hearing and timely vote."

Appointees to the Supreme Court are chosen by the president but need to be confirmed by the Senate before they are sworn in. Judging by McConnell's statement, it is pretty much guaranteed that the Republican-controlled Senate will reject whomever Obama picks to replace Scalia, if they schedule a vote at all. Supreme Court nominees need the support of 60 senators to be confirmed and Republicans in control of the Senate can stall the process as long as they wish, potentially until Obama is out of office. Currently just 45 Democrats serve in the Senate alongside two independents, including presidential candidate Bernie Sanders. If Obama tries go around Congress and to appoint a replacement while the Senate is in recess, Republicans could very well keep the battle going through 2017 by making sure there is always at least one person in the Senate during holidays and breaks to prevent a recess from occurring.

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Historically, the rejection of a Supreme Court nomination due to partisan fighting is relatively uncommon but not entirely without precedent. Since the first Supreme Court bench was assembled in 1789, only 11 nominations have been rejected outright during a Senate roll call, according to a Congressional Research Service report.

There is no timeline for the president to pick the next Supreme Court justice. The average amount of time has been 67 days between presidential nomination and confirmation by the Senate, according to the Congressional Research report. From the time of nomination, the longest the Senate has taken to vote on a nomination is 125 days. Obama has 342 days left in office. A delay of this length, through the inauguration of the next president in 2017, is unprecedented.

Even before Scalia's death, the question of Supreme Court appointments loomed large over this election. The next president will likely have the opportunity to choose three — now potentially four — new justices during his or her term, considering the age of some of the current justices. Ruth Bader Ginsburg is 82, Anthony Kennedy is 79, and Stephen Breyer is 78. It is exceedingly rare for a seat to be empty at this stage during a presidential election, since justices often carefully plan the optimal time for their retirement to avoid this exact scenario. Long before the current election cycle began to heat up, pundits began predicting the huge impact that the next president is going to have on the decisions coming out of the Supreme Court for generations to come.

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The timing of Scalia's death is made even more significant both because the current Supreme Court is the most polarized it has ever been, and there are two major court cases coming before the high court this spring. The first, Whole Woman's Health v. Hellerstedt, is the biggest case on abortion to be taken up by the court since the landmark Roe v. Wade decision in 1973. The outcome of that case, concerning a restrictive abortion law in Texas, could affect millions of women's legal right to accessing an abortion. The second, United States v. Texas, addresses Obama's executive action on immigration that would allow as many as five million undocumented immigrants to remain the US. This has been one of Obama's biggest moves during his administration and the court's decision on this case will leave a lasting imprint on his legacy.

Scalia's death does not mean the Supreme Court is suddenly in a holding pattern until the next justice is appointed. There is nothing in the Constitution requiring there be nine justices, so the Supreme Court can continue to hear and decide cases as Obama fights with the Senate to fill the vacancy — but most of those decisions will likely end up being 4-4 ties. When this happens, the decision then goes back down to the lower courts, and it is effectively as though the case never made it to the Supreme Court in the first place.

It might not be such a bad thing for Obama if there are only eight justices on the Supreme Court bench when these cases come up in the following months. Most of the lower courts are dominated by liberal appointees, lawyer and historian Linda Hirshman pointed out in a Washington Post editorial in December. The makeup of those lower courts works in the Democrats' favor even if the next Supreme Court justice is a conservative. Without Scalia's vote, the Court is unlikely to uphold the Texas law seeking to restrict abortions that is at the center of the Whole Women's Health v. Hellerstedt case. If the decision moves down to the lower courts, the federal outcome on abortion restrictions will again depend on geography and how conservative or liberal the circuit is. The case over immigration is more complicated. A federal appeals court in the conservative Fifth Circuit has already struck down Obama's executive order and this decision will stand if the Supreme Court decision is tied 4-4.

During an interview with the New Yorker in 2014, Obama didn't seem too worried about possible future Supreme Court nominations being blocked. The massive media attention these decisions receive "means that some of the shenanigans that were taking place in terms of blocking appointments [to lower courts], stalling appointments, I think are more difficult to pull off during a Supreme Court nomination process," the president said.

Follow Olivia Becker on Twitter: @obecker928