Now that Justice Scalia has died, what will Congress do?
[NOTE: Although I already speculated somewhat about this question in the addenda to the previous post, I felt the issue is so important it needs a post of its own.]
What will happen now?
To set the scene: it’s nine months to the election, about eleven till the inauguration. The GOP controls the Senate, but there’s a Democratic president (in case you haven’t noticed). The Supreme Court is split between 4 liberal and 4 conservative justices and one swing justice. One of the conservative justices dies. President Obama has the right to appoint his successor, and that appointment will entirely change the Court’s makeup to predictably liberal. And yet he needs the Republican Senate’s approval to do it.
In an ideal world, justices would be “neutral” and the august and objective law would be the only guide they followed. But in the real world, justices each have a judicial attitude and philosophy that is reflected in decisions that tend to consistently and predictably lean to one side or other in their political consequences. Therefore no judge Obama appoints will be “neutral”; that person will be liberal if not leftist. That is a given.
The GOP Senate, tasked with giving approval or not to the president’s appointments, has shown itself to often be unwilling to fight him; it’s one of the reasons most Republicans are so angry with them. But until now, he has only had the opportunity to appoint successors to liberal SCOTUS justices, so his appointments have not substantially changed the makeup of the Court. Nor, until now, has the GOP had the majority when he has appointed a SCOTUS justice. Plus, to have tried to block one of his past appointments would have meant the vacancy would have lasted for a long time. Now the time is relatively short.
What will happen? Past experience, even recent experience, is little guide, since a parallel situation has not presented itself before. In fact, Jeffrey Rosen of The New Republic has pointed out that this situation is unprecedented since the 1800s:
1895 was the last time a Democratic president nominated a justice facing a Republican Senate (44 Republicans joined 40 Democrats and six senators of other parties to approve Grover Cleveland’s nomination of Rufus Peckham). Since then, every other Democratic president with a Supreme Court vacancy faced a friendly Senate.
Why am I quoting someone writing for TNR, from the liberal perspective? For the simple reason that Rosen was very prescient in considering the question, since he wrote those words on November 3, 2014, in contemplation of the possibility that the GOP might gain control of the Senate on the very next day. And that’s exactly what happened.
More from Rosen:
Given the already toxic atmosphere in Congress over the politicization of the judiciary, some scholars are already predicting that Republicans will refuse to schedule hearings on President Obama’s Supreme Court nominees if they’re not “acceptable” to the GOP.
But there’s a more optimistic possibility: Democrats can point to bipartisan Supreme Court confirmations, like justices Clarence Thomas and Antonin Scalia, where they have voted for nominees with whom they disagree. And there is next to zero historical evidence of gridlock causing extended vacancies…Even Obama himself…suggested there would be pressure for Republicans to approve a nominee, saying that intense media coverage of SCOTUS nominations “means that some of the shenanigans…I think are more difficult to pull off during a Supreme Court nomination process.”
Oh, you can bet there will be pressure—from both sides. But since this vacancy would not be for an “extended” time, that argument of the Democrats would have less force. It would be hard to effectively argue that a 4-4 Court till the end of Obama’s term would be some sort of tragedy. The real question is the intent of the GOP-led Senate, and whether they are committed to staying the course. The good news is that McConnell has just issued the following statement, after extending condolences to the Scalia family and praise for Scalia:
The American people”Ž 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.
Let’s see if he can stay the course.
Nice music video by Harvard Law students about Scalia’s writings. You will LOVE it. He was a big music and opera fan.
https://vimeo.com/122237720
And Mitch better not go wobbly now.
The gloating of many on the hard left over this sad news, which bodes ill for the future of liberty in this country, provides all the proof necessary that leftists, who claim to be motivated by noble sentiments, are truly driven mostly by ignorance, envy, hatred and sheer lust for power and domination.
“The Supreme Court is split between 4 liberal and 4 conservative justices and one swing justice.”
With Scalia’s passing, it is now 3 conservative justices, 4 liberal justices and one swing justice.
My impression is that Kennedy votes with the liberals far more often than with the conservatives. So, we now have 5 liberal justices and 3 conservative justices. And that’s only if Roberts votes conservative but even when Roberts does, now unless Kennedy also votes conservative, the liberals already have a liberal majority.
So, say McConnell and the GOP holds firm. A republican President is elected. And then, in retaliation, the democrat minority blocks any appointment by the republicans… and continues to do so for the foreseeable future. Not caring a bit that there are only 8 justices… happy with their 5 to 3 majority.
Geoffrey Britain:
That is definitely a possibility. A better one, however, than approving Obama’s appointment.
Cornhead Says:
February 13th, 2016 at 7:04 pm
OK, that right there was funny.
One result of this death is a greater prominence of the Second Amendment in the general election campaigns.
Like black humor funny.
Conspiracy theory prediction: Obama makes no more than token attempts to push through a nomination, not really opening full-bore on the Republican Senate, indicating he’s resigned to not getting his appointment through as president. Meanwhile, he starts throwing himself full-bore behind Sanders, in exchange for the promise that Sanders will nominate Obama if he wins.
I’m willing to believe that Scalia died of natural causes, until proven otherwise.
But the conspiracy theorists are already out and about.
No matter how he died, this really does look like a Franz Ferdinand moment for America. Forces are being set into motion that will be impossible to stop.
McConnell quoted as saying the replacement will be appointed by the next President. We shall see.
A tradition has grown up that a lame duck president in his last year should leave SCOTUS nominations to his successor.
I remember LBJ being frustrated by that. When a vacancy occurred after he declined to run for re-election the Senate, even a Democratic Senate, made it plain that filling the seat would be left to the next president.
Then, again, I may have it entirely wrong. It was a weird time. Johnson had previously tried to promote Abe Fortas from Associate Justice to Chief Justice and Fortas, running into ethics questions, not only wasn’t confirmed but ended up resigning altogether. Later Nixon resolved the confusion by replacing Chief Justice Earl Warren with Chief Justice Warren Earl (Burger).
The Senate is in recess until the 23rd, so what’s to prevent Obama from making a recess appointment? I’m thinking he’ll install Valerie Jarrett.
Notice McConnell’s statement is as fluffy and soft as a French Waffle?
“The American people‎ should [SHOULD? NOT MUST?] have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should [SHOULD? NOT WILL?] not be filled until we have a new President.
He should have said: The American people‎ WILL have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy WILL not be filled until we have a new President.
I am sure that Obama will nominate some communist who is a certified triple minority, e.g. gay, black, transsexual. The media will then lumber the Rs as racists and homophobes for opposing zir.
If there is an over/under on the Senate Republican’s holding out, I will take the under. They are gutless swine.
What will Obama do? A recess appointment? He has a window of opportunity, it seems:
http://pjmedia.com/instapundit/226701/
Glen thinks that BHO may have a constitutional right to appoint a SC judge. http://pjmedia.com/instapundit/
ton – The President has a constitutional right to nominate a Supreme Court Justice.
ton – The President has a constitutional right to nominate a Supreme Court Justice. The Senate has the right to advise and consent. No consent, no appointment. Simple as that.