Published: February 18, 2016
United States Supreme Court Justice Antonin Scalia passed away on Saturday, marking the end to his near 30 years on The Court, appointed by Ronald Reagan in 1986.
Seen as an outsider originally, Scalia defined himself as an Originalist. Originalists are of the belief that those who make, infer and enforce the law should do so by strictly adhering to those rules set forth in the United States Constitution as they were originally written. The number of people subscribing to this perspective has dwindled in the last hundred years, as more and more choose to look at The Constitution as a living document – that it has no definite meaning, and that interpretations of it are subject to change with the times. In fact, this dwindling Originalist mindset is one of the reasons Reagan appointed Scalia in the first place.
The open spot left on The Supreme Court of The United States (SCOTUS) by Scalia’s death is bound to start a political controversy that will no doubt extend well into the coming months.
WHERE WE ARE NOW:
Why all this controversy over one seat on a court that seats nine justices?
The answer is two-fold.
First, for the last 25 years, the Supreme Court has been divided between five Conservatives and four Liberals – Scalia being one of those conservatives.
As political science Professor Gretchen Van Dyke, Ph.D., points out, with Scalia there were “four firm votes on the right, Anthony Kennedy in the middle, and four moderate votes.”
The way the court sits now, without Scalia, there is an even split.
We now have a Democratic president choosing a successor for a conservative Justice at the end of his term, which is not what normally occurs. Nominations to The Court usually occur in the beginning of a president’s term, as evidenced by President Barak Obama’s previous nominations. This happens in part because there is a tendency for Liberal justices to use the election of a Democratic president as an opportunity to resign, with the assumption that the president will appoint someone with similar ideological values. The same can hold true for conservative justices. This, combined with the fact that SCOTUS justices serve for life, means that the next justice appointed will determine the ideological makeup of The Court, not just in the immediate future but for generations to come.
Second, with a Republican-controlled Senate (54R-46D), Obama getting justices through is going to be near impossible. Republicans are vowing to strike down anybody that Obama appoints.
Obtained from a video on Vox.com, in a statement by Obama following Scalia’s death, from Omni Rancho Las Palmas in Rancho Mirage, California, Obama said, “I plan to fulfill my constitutional responsibilities to nominate a successor in due time – and there will be plenty of time for me to do so, and (for) the senate to fulfill its responsibility to give that person a fair hearing and a timely vote. (These responsibilities) are bigger than any one party. They are about our Democracy.”
As stated in Politico, Republican Senate Majority Leader Mitchell McConnell (R-KY) also commented, less than an hour after news of Scalia’s death broke that, “the American people 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.”
This is a statement that has been echoed by almost all Republican senators – that a SCOTUS nominee has never been appointed in the president’s final term. Though it’s worth pointing out that, when asking the reverse of the question (has the senate ever rejected SCOTUS nominees in a President’s final year?) the answer is yes: two times, in fact. Though they both occurred before WWII, with Presidents Filmore and Tyler.
Democrats, on the other hand, believe that the American people already have a voice in the selection. The same voice, said former Harvard Law Professor and Senator Elizabeth Warren on Facebook (D-MA) that they had, “when President Obama won the 2012 election by five million votes.”
So, in a sense, Republicans are all but promising to block whomever is appointed by Obama, and Democrats are calling for Senate approval without even knowing who Obama will propose. As is expected, statistics started floating in from all over the internet. Liberals are pointing out that Obama has 11 months left in his term, and they are saying it would be unprecedented to filibuster a nomination for such an amount of time. Many point to a tweet from a notable historian, Angus Johnston, stating “The longest Supreme Court confirmation process from nomination to resolution was Brandeis, at 125 days. Obama has 342 days left in office.”
On average, since 1975, nominees have waited 67 days for a vote of confirmation. Hillary Clinton also jumped in, pointing out that the fight for Clarence Thomas in 1991 (the longest confirmation process) lasted 100 days.
Conservatives responded by pointing out how long it took to replace Robert Cooper Grier in 1844. Though it needs to be taken into consideration, said Van Dyke, that the political climates before and after WWII were drastically different. For a large part of the 20th century, the country was not as polarized as today and SCOTUS nominations did not usually lead to the kind of political brawl we are witnessing now.
Liberals have also pointed to Justice Anthony Kennedy, who was easily confirmed by The Senate in the last year of Reagan’s presidency. Conservatives responded to that by noting that he was actually appointed in 1987, not 1988, and only after Democrats rejected the conservative Robert Bork for the position.
Does that seem like enough back-and-forth commentary to you?
To make the situation even more serious, imagine that Obama is not able to appoint a nominee in his remaining time in office. That will add more heat to an already smoldering issue in the upcoming presidential election. Whoever is elected in 2016 would not just determine whether SCOTUS leans left or right in the immediate few years following the election, but for decades to come. Electing Clinton or Sanders would most likely result in not only a possible liberal appointment for Scalia’s spot, but also for the other liberal Justices Breyer and Ginsberg, too – giving a liberal majority late into the 2030s. On the other side, electing Cruz or another conservative republican would allow a replacement of swing-vote Kennedy with another, more conservative judge, changing the ideological landscape to conservative.
Let’s recap really quick. One of the most conservative SCOTUS Justices in recent years suddenly passed away on Saturday. Obama has the presidential right and obligation to present a nominee to The Senate in due time. Democrats are calling for The Senate to accept the nomination, and republicans are calling for swift denial of that candidate. Regardless, the person who chooses the seat will be taking a seat in a court that, without the ninth Justice, is split evenly between conservatives and moderates – Meaning that the new Justice will, in effect, determine the ideological makeup of the court for decades to come.
The swift objection from republicans has done more than they may realize, however. It has given a rallying point for Democrats in this coming election season. These objections will give Obama the best example yet of a Republican Congress that he has said for years always chooses inaction, because their plans for delay will not end as soon as a republican president assumes office – even then, it will take time for a nomination to go to The Senate, and weeks from then to process the nomination. The delay is longer than it would initially appear.
Obama’s 2008 campaign manager tweeted, “The Senate GOP might have just ensured the Obama coalition turns out in ’16 [to the elections]. Dem WH for 16 straight years, Dem Senate in ’17. Geniuses.”
Furthermore, it is not hard to believe that in six months, Donald Trump will be the republican nominee. When combining that with the risk they are in of finding themselves losing The Senate, Republicans may find a future President Clinton or Sanders appointing a Liberal they vehemently disdain to the court, and with no Senate majority to block them, republicans may be wishing they had worked with Obama on finding an appointee now.
Senate republicans are worried about their next primary election, as political scientist Dave Hopkins explained on Twitter. Conservative voters in that election may see any compromise with a democratic president as an unforgivable sin, and by denying any nomination early on, Senate Majority Leader Mitch McConnell is attempting to ensure that his caucus passes the test of their constituents.
Van Dyke pointed out that, “People need to understand that, while you can do all these investigations and be fairly certain that someone will be conservative, you’re never sure until they hold their position in the court.”
Are you starting to grasp the seriousness of the situation?
WHAT DOES THIS MEAN MOVING FORWARD?
Currently, without Scalia, SCOTUS is most likely going to end up with a 4-4 tie in many upcoming votes. Van Dyke points out that if there is no majority one way or another, then the ruling reverts back to the lower court’s decision, which can create more challenges, even though that ruling does not set a precedent for the future. That means that whoever won in the lower courts is a big deal – and this year has been heavy in more liberal decisions in lower courts, and they are – in a tie – almost sure to survive Supreme Court review.
There are a number of decisions that blocking a nominee could impact.
Campaign financing: States can challenge Citizens United, a ruling which cited first amendment rights to allow campaign financing from independent donors. If Obama’s nominee is blocked, AND a federal circuit court or state Supreme Court votes on spending limits in state elections, AND a 4-4 tie results from The Supreme Court, then some states would be – however temporarily – restored to the era before campaign financing became such an issue. It should be noted, though, that it does not look good for Supreme Court precedent to change often, or for lower court judges to ignore SCOTUS rulings.
Abortion: Many Texas abortion clinics could close (which, admittedly, could have happened even with Scalia on the court). A 4-4 expected decision in the case of Whole Woman’s Health v. Cole would leave in place the lower court ruling that put restrictions on abortion clinics.
Health Care: In Zubik v. Burwill, the argument from the Little Sisters of the Poor and the Roman Catholic Archdiocese of Washington stated that “Obamacare’s” requirements for employers to provide female employees with health insurance that includes no-cost access to birth control violated their religious freedom. SCOTUS ruled against this, but with a 4-4 tie, the decision could go back to lower courts.
Affirmative action: In December, Scalia angered many with remarks that affirmative action negatively affects minorities by allowing them to enter into an environment where they would not be able to perform as well as they would in lower-tier schools. A 4-4 vote on this case could allow affirmative action to survive.
Separation of Church and State: Religious schools may continue to be denied publicly funded grants. Scalia was one of the members of SCOTUS holding the opinion that this blockade of funds would impede the free exercise of religion, and that was expected to come out during a vote.
ALL IN ALL
This is an issue that deserves our attention and respect. It is not another news blip to cross your screen – this is a political and ideological shake-up of the current foundation of our political system, and its consequences – whether favored by liberals or conservatives – will be felt by everyone.
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