As reported by James Edwards, this weekend saw the death of Supreme Court Associate Justice Antonin Scalia.
The news of Scalia’s death has sent shockwaves through Washington D.C as it comes just seven months before a Presidential election, giving Barack Obama a final chance to add to his legacy as President by selecting Scalia’s replacement. Obama has already made two appointments to the highest court in the land; Sonia Sotomayor in 2009 and Elena Kagan in 2010, but those were made with a Democrat-held Senate (it’s the job of the Senate to approve any Judicial nominee by majority vote) and very early in his presidency.
The situation now is somewhat different. The Senate has a Republican majority, Obama is in the final throes of his Presidency and the Justice he is replacing is a different beast from the previous two who have departed the bench. Sotomayor and Kagan are both Constitutional liberals and replaced David Souter (a moderate Constitutional conservative) and John Paul Stevens (another liberal). Scalia was a fierce Originalist, which is taken to mean that he interpreted the Constitution as the Founding Fathers would have considered it; hence he was always one of the most conservative members of the court.
As such, if Obama were to try and nominate another Justice as liberal as Sotomayor to the court he could find himself up against a hostile Senate unwilling to approve his nominee. Senate majority leader Mitch McConnell (R-KY) and other senior Republican Senators have already threatened to block an Obama nominee, while Presidential candidate Ted Cruz (R-TX), who is also a member of the Senate judiciary committee, has threatened to block a nominee by the process of filibuster.
This kind of reaction from the Senate has got many commentators on the left up in arms, but those commentators appear to have neglected to study their history, as this is not without precedent. In 1987, Ronald Reagan had to replace moderate Justice Lewis Powell a little over a year before the next election (in which Reagan was ineligible to stand, just like Obama).
Powell’s retirement had been widely expected and, as such, it was widely known that Reagan wanted to appoint Robert Bork to the bench. Bork would have been Reagan’s second Originalist appointment after Scalia, and the Democrats (who had a Senate majority) agreed before the nomination was even announced that they would not let the anti-abortion, pro-death penalty, Bork become a Justice. Senator Ted Kennedy gave a speech in which he suggested:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.
Bork was rejected by the Senate, and eventually Reagan was forced to nominate Anthony Kennedy, who is currently still on the court and, prior to Scalia’s death, often represented the deciding vote on any case. If Obama attempts to nominate another liberal justice (giving the court a solid 5-4 liberal bias, with Kennedy also sometimes siding with the liberals) he could find the nominee rejected by Senate Republicans.
The GOP should be wary, however, of this tactic. If they block everyone Obama puts in front of them until November and the election, but then go on to lose the election (and possibly control of the Senate) the next President (be it Hillary Clinton or Bernie Sanders) would be able to appoint an extremely liberal Justice with little to no obstruction from the Senate.
A far better course of action for the GOP may be to reject any hard-line liberal Obama may choose, but allow a more moderate liberal to join the bench. It is notoriously hard to judge what a nominee will actually do once they join the court; Republicans presumed David Souter would be far more Conservative than he ever was, and very few GOPers would have expected Chief Justice John Roberts (another conservative) to deliver a vote in favour of Obamacare, so the Republicans may hope that a moderate nominee might deliver them votes in cases relating to Partial-Birth abortion and gun control.
Of the names currently being suggested, the nominee most likely to cause the least argument in the Senate is US Appeals Court judge Sri Srinivasan. He has a fairly moderate background, having clerked for Supreme Court Justice Sandra-Day O’Connor (a moderate conservative) and has also represented big business interests in the past. When he was nominated to the Appeals Court (seen as a proving ground for the Supreme Court) he was confirmed 97-0 by the Senate, making it hard for them to justify rejecting him this time around. If Obama wants to make it three-of-three in terms of nominating women, then 9th Circuit Appeals Judge Jacqueline Nguyen was confirmed by a vote of 91-3 when she came before the Senate, making her another possible choice; though whether her relatively innocuous Judicial history would work for or against her is another matter.
This last test may be one of Obama’s toughest, and may be a case of pragmatism both on his part and on the part of GOP Senate leaders. However, if the GOP are looking for guidance on how to act, they might want to look to the advice the now departed Scalia gave Obama advisor David Axelrod in 2009. As Obama looked for someone to replace Souter, Scalia accepted it would not be a jurist who shared his philosophy, but what he did say was that he hoped ‘he (Obama) sends us someone smart.’ The Republicans can now either accept a potential compromise with Obama, or pin all their hopes on having a GOP President in the White House come January 2017, else they may be left with no say at all.