The recent death of Associate Justice of the Supreme Court Antonin Scalia leaves more than just a vacant chair at the bench of the nation’s top court. The appointment of his successor has quickly become a major political football in the ongoing contest for the 2016 presidential race, as well as in the continuing struggles between President Barack Obama and his tormenters in the Republican-controlled Congress. By J. BROOKS SPECTOR.
Everyone knows the old saying, usually attributed to Benjamin Franklin, that nothing is more certain than death and taxes. Up until this past weekend, it seemed much more likely that this year’s presidential election in the US would be more about taxes (and what they would be spent on) than it would be about death. That is, of course, until Supreme Court Associate Justice Antonin Scalia passed away suddenly during a short hunting trip in Texas. Given the country’s temperament nowadays, the conspiracy theorists already have started their churning about something amiss in this death and one should expect that there will be more of it in the future.
Scalia had been on the court for nearly three decades, since he was appointed by then-President Ronald Reagan in 1986, after Associate Justice William Rehnquist’s appointment as chief justice created a vacancy on the court. Scalia came to the Supreme Court after a distinguished, albeit often-controversial, career in the private sector, in academia, and as an assistant attorney general and then, later, as a federal appeals court judge, before being elevated the nation’s top judicial body.
He became known for his sharp-elbowed rhetorical style, a piercing interrogative manner on the bench, and a hard-as-nails approach to his reasoning on constitutional questions (the primary task of the Supreme Court) in which he was the leading figure in the school of legal thought that has been dubbed the “originalist” approach. This position says the intentions of the drafters of the Constitution or the legislative history of laws in question are unimportant; what really matters is what is actually written in the document itself, in the amendments that have been passed subsequent to the Constitution’s initial adoption by the states, or in laws passed pursuant to that national charter.
Meanwhile, proponents of the opposing doctrine, that of an evolving, living constitution, have generally taken the view that the creators of the Constitution could not have foreseen every complexity of contemporary life and that the doctrine in that document must be interpreted in light of changing times and circumstances. Moreover, the legislative history of laws (about whose constitutionality has come into question before the court) must similarly be taken into account as an accurate understanding of what their drafters’ intentions were, even if the actual language is unclear or open to alternative interpretations.
As a result, Scalia’s full-throttle engagement with constitutional questions – especially on a court where the conservatives were usually seen to have at least four members reliably on that side, versus four more liberal interpreters – often meant his argument could be crucial in winning over at least one additional judge to that position. His acerbic style often meant, however, that his views frequently came in the form of a separate dissent when he was in the minority or as his own concurrent opinion when in the majority, rather than simply joining in with his colleagues. That said, he managed to reach across the ideological canyon and become personal friends with his colleague Ruth Bader Ginsberg, an unshakable liberal in the same court as Scalia.
Scalia’s sudden death, however, has now morphed into a major issue with some very far-reaching, and unexpected consequences for this year’s presidential race. David Gergen, a veteran political advisor for four presidents (including both Republicans and Democrats), has noted on various news programs since Scalia’s death that, unusually, leadership and membership in all three branches of the federal government are now in play in this year’s election. First, of course, is the presidency itself as six Republicans and two Democrats remain in party-based contests to gain their respective party nominations. Meanwhile, the entire House of Representatives and a third of the Senate comes up for election as well.
While the House is not presumed to be in play and will almost certainly remain in Republican hands (albeit with a possibly smaller majority than at present), in the Senate, a number of seats in some of those so-called purple states – where the balance between the two parties has swung back and forth in recent elections – currently held by Republicans may possibly be up for grabs by Democrats. This will largely depend on how the texture of the larger election eventually shakes out or it will be based on the strengths of the individual candidates vying for election.
But, with Scalia’s court seat now suddenly vacant, the battle over the appointment of a new associate justice is already taking on a seriously confrontational texture – as this could decisively reshape the ideological contour of the court for years along a more liberal dimension.
The Constitution says straightforwardly that the president shall nominate individuals to become Supreme Court justices – subject to the advice and consent of the Senate. And the president has already said he is prepared to nominate a successor in due course and that he expects the Republican-controlled Senate to do its constitutional task of considering and then voting upon his nomination.
However, even before the late justice’s body was decently cold and well before his funeral, Republican congressional leaders and presidential nomination contenders had all articulated their position that Obama as an outgoing, lame duck president should simply cede the nomination of Scalia’s successor to the incoming president, after the people’s voice has been heard in the upcoming election. (The presumption, of course, is that the new president would be of their party.)
Democrats have countered testily that the people’s voice had already been heard rather decisively in 2012. In that election, Barack Obama was reelected and he is now simply trying to fulfill his constitutional duty. Accordingly, the Senate should do theirs – advise, consent or reject any new nomination – rather than concoct an obviously partisan constitutional interpretation about when a president can or cannot nominate judges. And furthermore, Ronald Reagan had, after all, nominated Anthony Kennedy to the Supreme Court in his final year as president as well, 1988. So there! Take that, GOP!
There are political risks all round on this one, of course. For the Republicans, while they are betting on a Republican victory in the presidential race in November, they may well end up being portrayed as obstructionists of a basic constitutional provision, even as they lose the presidential race along with a couple of Senate races as well, thereby guaranteeing a Democratic candidate wins the big prize and then names the next justice as well. In such an eventuality, the new president – Hillary Clinton (or Bernie Sanders!) – would end up picking the next nominee and a now-Democratic Senate would end up confirming him or her. Game, set, match to the Democrats on this one, if it all went along that course.
For Democrats, pushing for confirmation hearings of a presidential nomination that seemed too extreme to many moderates could, conceivably, backfire on the president as someone who always pushes what Republicans have repeatedly defined as his extremist agenda, especially in an election year. On the other hand, President Obama may well decide to nominate someone like US Circuit Court Judge Sri Srinivasan (a distinguished South Asian-American legal scholar and judge), who was, after all, an Obama nominee who had already been unanimously been approved by the Senate when he was confirmed for his judgeship some years back.
If the Republican Senate continued to refuse to hold hearings, let alone refused to vote on someone like Srinivasan, they could end up looking ridiculously churlish, even though such a choice might not be precisely the kind of transformative appointment the president might otherwise wish to make for the court. So far, at least, this issue may be swinging in favour of the president and his party, at least in the public discourse, and in ways that may have unpredictable impacts on key Senate races in the election – even if the battle has not been won in the minds of Senate Republicans who do have the ultimate power to decide whether an Obama nominee makes it through the confirmation process and joins the court.
The thing of it is, there is a range of important cases that have already been argued before the court (but before a decision has been issued) or are on the schedule to be heard in 2016, before the court issues its rulings on them in the middle of this year. As NPR (the US’ National Public Radio news service reported, “These include cases that test abortion-access restrictions in Texas; the right of public employee unions to collect mandatory dues; two cases of conflicting rights involving religious liberty; the means by which population is defined for political purposes; and the legal enforceability of President Obama’s executive actions broadening a program of deferred deportations for certain immigrants.”
With the court presumably balanced 4 – 4 along the conservative (originalist) versus liberal (living Constitution) axis, any decisions on these questions would presumably be deadlocked. “Split decisions” would leave standing whatever lower court decisions had been made in the cases concerned – but without making those determinations precedents for further, future cases. In effect, the court would almost certainly end up hearing similar cases, or even the same ones argued differently, all over again in the near future. All of this makes the circumstances of Antonin Scalia’s successor especially important – and particularly politically charged, smack in the middle of a national election.
Meanwhile, the primary season marches on. Coming up next is the South Carolina primary (20 February for Republicans and the following week for Democrats), along with the Nevada caucus. Among the now-slimmed down posse of six Republicans chasing the nomination, things have been getting increasingly nasty, especially since Donald Trump, the presumed frontrunner in both of these two states, chose to call out former President George W Bush’s Iraq war and the dreadful outcomes thereafter as a major blunder that effectively overturned Middle Eastern politics, security and stability. And just along the way, also cost the US immense treasure and thousands of lives, all without any improvement in national security. In response, most other Republicans – and most especially Jeb Bush, the former president’s brother – have risen to defend the usual Republican catechism of how that war was a key part of “keeping America safe”. But the remaining Republicans have, among themselves, also largely chosen to attack Senator Ted Cruz for his positions on various other issues, as well as Senator Marco Rubio for his zombie-like responses in a recent televised debate along with his flip-flops on immigration policy.
Among Democrats, meanwhile, Hillary Clinton’s presumed advantage in South Carolina with its large percentage of African Americans among the likely Democratic primary voters, as well as her heretofore putative advantage in Nevada with its highly unionized, significantly Hispanic American voting poll, appears to be slipping as the enthusiasm of Sanders supporters keeps chivvying at Clinton support. There have been some increasingly harsh exchanges among various leading African American political and social activist figures over the depth of Sanders’ support for their issues, as well as arguments, for example, over whether or not a recently released picture showing Sanders at a civil rights meeting in the 1960s was actually of him or was somebody else.
In both camps, the infighting continues to sharpen the divides between would-be nominees, even as this newly inserted question of the best way (in terms of political benefit) to deal with the vacancy on the Supreme Court seems increasingly likely to become an issue that animates sharp exchanges across the political divide as well. Lots, lots more to come in this political ultra-marathon – now equipped with a whole set of newly installed obstacles as well. DM
Photo: U.S. President Ronald Reagan speaks with Supreme Court Justice nominee Antonin Scalia (R) in the White House Oval Office in Washington, DC in a July 7, 1986 file photo courtesy of the Ronald Reagan Library. Conservative U.S. Supreme Court Justice Antonin Scalia has died, setting up a major political showdown between President Barack Obama and the Republican-controlled Senate over who will replace him just months before a presidential election. REUTERS/Bill Fitz-Patrick/White House/Courtesy Ronald Reagan Library/Handout via Reuters
For more, read:
- “Justice for Scalia”, a review by Robert Post in, “A Matter of Interpretation: Federal Courts and the Law” by Antonin Scalia, edited by Amy Gutmann, with commentary by Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon and Ronald Dworkin,Princeton University Press in the New York Review of Books (an excellent survey of Scalia’s legal thinking and responses to it)
- These are the key cases facing the Supreme Court after Scalia’s death in the Washington Post;
- Obama’s Supreme Court short list – The president has a chance to make a big statement with his pick to replace Scalia in Politico.com.
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