“Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas, according to a statement from Chief Justice John G. Roberts Jr. He was 79.” (New York Times, 13 February 2016). Scalia was intelligent and best known for his “caustic dissents that alienated even potential allies.” Although I rarely agreed with his opinion, he being a conservative and a textualist, I respected his intellect, enjoyed reading his acerbic opinions, and the Supreme Court is a little less bright now. That said, it is not my intent to eulogize nor criticize the man, but to address a conflict that began brewing within minutes of the news of his death being announced.
Article Two of the United States Constitution places the power of appointing Justices with the President of the United States, stating:
“he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”
It is clearly the responsibility of President Obama to nominate a candidate to fill the vacancy left by Justice Scalia’s death. However, Senate Majority Leader Mitch McConnell (R-Ky.) said in a statement that the Senate controlled by his party should not confirm a replacement for Scalia until after the election. Presidential candidate Ben Carson reiterated McConnell’s stance. President Obama still has nearly eleven months left to serve as President of the United States, and it makes no sense whatsoever to wait that long to replace Scalia. Obviously, the republicans are hoping to see one of their own elected as president in November, but never mind that it seems a long shot at this time, the issue here is whether it makes sense to leave the vacancy open for that long.
The Supreme Court consists of nine justices … now there are eight. Not only does this create a possibility of a tie when deciding and ruling on cases, but under the circumstances, it creates a great probability that there will be ties in many cases over the coming months. Why? Because of the remaining eight justices, four are conservative (Kennedy, Roberts, Thomas, Alito) and four are liberal (Kagan, Sotomayer, Ginsburg, Breyer). Some highly controversial issues are on the docket for the coming months: abortion, affirmative action, the rights of religious objectors to the contraceptive mandate in the Affordable Care Act, the president’s powers on immigration, and deportation. An eight-member court could very well be deadlocked on all of these issues.
While it is extremely unusual for a Supreme Court vacancy to be unfilled for a long period of time, it is not without precedent. The longest was 2 years, 3 months and 18 days in a situation similar to the current one. When Justice Henry Baldwin died April 21, 1844, John Tyler was president. Followers of Henry Clay, believing he would be elected, voted to postpone consideration of all Tyler’s appointments. Clay lost the election to James K. Polk at the end of 1844, but Polk’s first appointments were also rejected, thus it would be August 1846 before the Senate finally confirmed Robert C. Grier to fill the position. (American Political Leaders 1789-2005, CQ Press Editors, 2005)
President Obama stated that he will nominate a Supreme Court Justice “in due time”, that it is his responsibility and that of the Senate to do so. The reason, according to McConnell’s argument, that the next president should be the one to make the nomination, is to “give the voters a say in the selection”, but the fallacy in that is that the voters have no say whether President Obama or the next president make the appointment. Unless, that is, it becomes a campaign issue. The Supreme Court, by the nature of the Constitution, is the one branch of the federal government that is specifically not intended to be subject to the whims of politics. That is why justices are appointed for lifetime terms, so that they will not face re-election, not be tempted by the corruption that is inherent in the political process. So it would be unconstitutional to allow the nomination and appointment of a justice to become a political issue.
There is no doubt that, unless President Obama is able to pull a rabbit out of his hat and appoint a candidate who is unarguably acceptable to the republican controlled Senate, that same Senate will do everything in its power to block his appointments. It is an abominable state of affairs when one party brings the wheels of justice to a screeching halt, but I fear that is what is going to happen. And all for naught, as it is highly unlikely at this point that a republican will become the next elected president. But alas, they must play their little games, and we, the citizens, must pay the price.