U.S. Senate Majority Leader Mitch McConnell vowed to block President Barack Obama in his remaining months in office from replacing Antonin Scalia on the Supreme Court, a direct challenge to the White House that is certain to roil the 2016 presidential campaign.
“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell, a Kentucky Republican, said in a statement shortly after Scalia’s death was made public. “Therefore, this vacancy should not be filled until we have a new president.”
With some Republican lawmakers already lining up behind McConnell, Harry Reid, the Democratic leader in the Senate, quickly countered with a warning against trying to run out the clock on Obama’s presidency by holding up a replacement for Scalia, who was found dead Saturday at a resort in West Texas. He urged Obama to send a nomination to the Senate “right away.”
“It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” Reid said. “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”
Foreshadowing Fight
The ferocity of early reactions from McConnell and Reid, barely an hour after Scalia’s death became public, foreshadowed a bitter and bruising political fight over how to replace him, directly in the middle of the 2016 White House campaign.
One of the most reliably and outspoken conservative voices on the divided, nine-member high court, Scalia also counted among the five justices nominated by Republican presidents, while the remaining four are Democratic nominees.
Democrats have sought to use the potential for court vacancies as an election-year issue to encourage voter turnout, saying the next president likely will replace three justices on the aging court. They have warned that a Republican president could tip the court more heavily against women’s reproductive rights and campaign finance reforms they favor and in support of corporations.
Litmus Tests
Hillary Clinton, in her campaign for the Democratic presidential nomination, said earlier this month that she will have “a bunch of litmus tests” for the next nominee. “I’m looking for people who understand the way the real world works,” she said, and cited preferences for expanding gay rights, preserving abortion rights and reversing campaign finance decisions that allow unlimited campaign spending.
Scalia’s death changes the balance of the court to 4-4 – and upends the political dynamic now surrounding nominations. If Obama, who nominated two of the court’s current justices, both women, nominates a successor to Scalia, and the Senate confirms him or her it would make the court a 5-4 court of Democratic nominees.
And while Senate Democrats in 2013 triggered the so-called nuclear option -- dropping the thresholds to end filibusters for executive branch nominations and most judicial nominations to a simple majority -- they kept the threshold at 60 votes for Supreme Court picks. That move now could bite them because they will need 14 Republicans to cross party lines to confirm a nominee, which is highly unlikely.
Potential Nominee
One potential candidate is Sri Srinivasan, a 48-year-old federal appeals judge in Washington who would be the court’s first justice of Asian ancestry. A potential compromise is Srinavasan’s appeals court colleague, Merrick Garland, 63, whom Obama considered for Supreme Court openings in 2009 and 2010. At the time, Garland had support from prominent Republicans, including Senator Orrin Hatch of Utah.
More immediately, Scalia’s death greatly reduces the chances of major conservative victories in pending Supreme Court cases involving Obama’s immigration plan, abortion, affirmative action, mandatory union fees and voting rights.
Norm Ornstein, a congressional scholar at the American Enterprise Institute, said there’s "no way to compel" the Senate to let Obama get a vote on a potential successor. He said there also is no precedent for such a long delay in filling a Supreme Court vacancy.
According to a Congressional Research Service Report, since the Ford administration, the average number of days from nomination to the final Senate vote is 67 days. From 1789 to Elena Kagan’s 2010 confirmation, the Senate has confirmed 124 of 160 Supreme Court nominations, while six of the remaining 36 were later renominated and confirmed; 11 were rejected outright.
Republicans may be motivated to hedge their bets depending on both parties’ nominees and the general election prospects. If Obama nominates Srinivasan, who was confirmed 97-0 by the Senate in 2013, and the nominees are Hillary Clinton and Donald Trump, Ornstein said, McConnell may decide it’s "better to confirm a relative moderate” than end up with a Democratic president and Senate.
There also is the risk for Republicans that Democrats win the White and a majority in the Senate in the November election resulting in the next justice being much more liberal than any consensus candidate Republicans could negotiate over this year.
Other experts said to brace for a difficult fight.
"This will be a tough confirmation battle—even assuming that the Obama White House gets a nominee vetted and announced swiftly," said Sarah Binder, a professor at George Washington University. "It’s been 25 years since the Senate was called on to confirm a nominee from a president of the opposing party. And partisan competition and antagonisms were far lower then compared to their heights of today."
Within minutes of the reports of Scalia’s death, conservatives began mobilizing to argue that President Barack Obama should not be allowed to appoint a successor.
"It would be wise for everybody to wait until the next president is chosen,” Hatch said Saturday on Fox News. "Seeing the type of judges that the president has appointed, there aren’t many Republicans who are going to differ with Majority Leader McConnell."
"What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?" wrote Conn Carroll, a spokesman for Senator Mike Lee of Utah, a Republican member of the Judiciary Committee.
"The Republicans will certainty use this as an issue to stifle the president and stir up the campaign trail," said Princeton University professor Julian Zelizer. "Nor are they any mood to compromise on anyone other than a nominee that is politically impossible to oppose."
Zelizer is an expert on President Lyndon B. Johnson, who in 1968 tried to elevate Justice Abe Fortas to Chief Justice when Earl Warren announced he would resign - only to fail. "The Fortas example is an example of the problems a lame duck president can face with high stakes confirmation," Zelizer said.
If Republicans try to run out the clock, they would be testing history, said Angus Johnston, a historian and professor at CUNY, noting that the longest processor from nomination to resolution was that of Louis Brandeis at 125 days, less than half the time Obama has left as president.
Scalia’s death during the nominating contest raises the stakes among a still-wide field of Republican presidential candidates to take aggressive stances.
Senator Ted Cruz, a former Supreme Court litigator who has argued cases before Scalia, said in a statement that Scalia was “one of the greatest Justices in history” and had “single-handedly changed the course of legal history.” Cruz said Scalia had “fundamentally changed how courts interpret the Constitution and statutes, returning the focus to the original meaning of the text after decades of judicial activism.”
Ohio Governor John Kasich said Scalia was “an essential, principled force for conservative thought and is a model for others to follow.”
