The death of Justice Antonin Scalia leaves a vacancy on the Supreme Court less than nine months from a presidential election, prompting a series of questions sure to dominate talk on the campaign trail: Will President Obama nominate a judge to replace Scalia? And if Obama does nominate someone, how will the Republican-controlled Senate handle the nomination?
The answer to the first question became clear Saturday night. Obama announced in a televised statement that he intended to nominate a successor “in due time.”
Calling Scalia “one of the most consequential judges and thinkers to appear on the Supreme Court” and “one of the towering legal figures of our time,” Obama said that Saturday should be about remembering Scalia’s legacy, not debating the impact of his absence.
The answer to the second question is a little more complicated. But all early signs are that Republicans would block any potential Obama nominees.
Debate about what will happen with the vacancy began almost immediately after news of Scalia’s death. And as you might expect, one of the first people to weigh in was Ted Cruz, who’s in the Senate now but is running to succeed Obama as president.
Cruz took plenty of flak for going political so quickly. But the other GOP candidates all made similar points during Saturday night’s debate in South Carolina.
If a Democratic president is able to appoint the next Supreme Court justice, it would give liberal-leaning justices a majority on the court — a significant change from the court’s current alignment, which consists, essentially, of four liberal-leaning justices, four conservative-leaning justices, and Justice Anthony Kennedy as the swing vote. It’s rare for a Democratic president to appoint the replacement for a conservative justice, or for a Republican president to appoint the replacement for a liberal, because justices often wait to retire until a president of their preferred party is in power.
President Obama has appointed two justices to the high court — the same number appointed by Presidents George W. Bush and Bill Clinton. The two justices appointed by Obama — Sonya Sotomayor and Elana Kagan — both replaced fellow liberals, leaving the balance of power in the court unchanged.
If the president does decide to move forward, any potential nominee would face a tough path to confirmation. The Constitution permits the president to appoint justices with the consent of the Senate. There are 54 Republicans in the Senate and only 44 Democrats (plus two independents), so a united Republican majority could either vote down the nomination or simply stall the confirmation process until Obama’s presidency ends.
The early reaction from Senate Republicans is that the GOP plans to block any potential attempt by Obama to fill the vacancy.
Conn Carroll, the communications director for GOP Senator Mike Lee of Utah, called the chances of Obama appointing Scalia’s successor “less than zero.” (Lee is a member of the Senate Judiciary Committee, which presides over the confirmation of justices.)
Senator Majority Leader Mitch McConnell of Kentucky later said in a statement that the vacancy should not be filled until a new president is in office.
Here’s McConnell’s statement: (Emphasis added.)
Today our country lost an unwavering champion of a timeless document that unites each of us as Americans. Justice Scalia’s fidelity to the Constitution was rivaled only by the love of his family: his wife Maureen his nine children, and his many grandchildren. Through the sheer force of his intellect and his legendary wit, this giant of American jurisprudence almost singlehandedly revived an approach to constitutional interpretation that prioritized the text and original meaning of the Constitution. Elaine and I send our deepest condolences to the entire Scalia family. 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.
Hillary Clinton chimed in from the campaign trail, saying in a statement that Republicans would “dishonor our Constitution” if they were to delay the appointment of Scalia’s successor.
Correction: An earlier version of this post misstated the time remaining before the presidential election.