Justice Antonin Scalia’s Death
, The abrupt death of Supreme Court Justice Antonin Scalia-the fiery, funny, polarizing face of the Court’s modern conservative turn-ended a chapter in legal history and opened a political battle of a kind that America has not seen in decades. The bitter divide of this Presidential election season-over visions for the economy, national security, and immigration-has widened to include the ideological composition of the nation’s highest court.
At seventy-nine, Scalia was the Court’s longest-serving Justice, a father of nine, and an outsized personality who thrilled conservatives and infuriated liberals like nobody else in Washington. Though he maintained close friendships with some of his combatants, including fellow Justice Ruth Bader Ginsburg, and always hired a “token liberal” among his clerks, he openly relished the political implications of the Court’s affairs. Ever since he was nominated by President Ronald Reagan, in 1986, he dedicated himself to combating the notion of a “living” Constitution that evolves in step with the nation. The very announcement of Scalia’s death was accompanied by a political declaration. In the first official notice, Texas Governor Greg Abbott said, “We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the rule of law.”
The 2016 election has become a contest not only to determine control of the White House and the Congress but also to shape the future of the Supreme Court. The next President was expected to make multiple appointments to the court. (On Inauguration Day, Ginsburg will be nearly eighty-four, Anthony Kennedy will be over eighty, and Stephen Breyer will be seventy-eight.) With Scalia’s death, the partisan composition of the Court is now already up in the air. In a hastily arranged address on Saturday night, President Obama said he planned to name a nominee, over the protests of Republicans who could seek to prevent the Senate from voting on it. “I plan to fulfill my constitutional responsibility to nominate a successor, in due time. There will be plenty of time for me to do so, and for the Senate to carry out its responsibility for a timely vote,” he said. The issues at stake, he added, “are bigger than any one party. They are about the institution to which Justice Scalia dedicated his life.”
The outcome of the process has the potential to reshape American law on abortion, affirmative action, voting rights, energy, campaign finance, and many other issues. The political effects on the Presidential race cut in multiple directions: Will the suddenly inescapable vision of, say, a Cruz Presidency and a Cruz-chosen nominee bring more Democrats to the polls? And to which Democrat does that benefit accrue? Will the risk of a Sanders Court inspire evangelical voters to consolidate behind a Republican choice?
As news of Scalia’s death spread, hours before a Republican debate, the call for a moratorium on political strategizing around the news, in order to honor his achievements, was brief. Senate Majority Leader Mitch McConnell issued a statement that, in effect, called on President Obama to refrain from naming a replacement and allow the Court to operate with eight Justices. “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,” McConnell said.
Ted Cruz, the Texas senator who was a clerk for former Chief Justice William H. Rehnquist, agreed, marking Scalia’s passing in a tweet: “We owe it to him, and the Nation, for the Senate to ensure that the next President names his replacement.” Senate Minority Leader Harry Reid called on Obama to nominate a replacement immediately, saying, “The Senate has a responsibility to fill vacancies as soon as possible.” Donald Trump, the Republican front-runner, called for the Senate to “delay, delay, delay” if President Obama attempts to name a successor.
Hillary Clinton said that Republicans who want the seat to remain vacant until the next President is in office “dishonor our Constitution” for partisan reasons. Bernie Sanders, who defeated Clinton last week in the New Hampshire primary in part by presenting himself as a different kind of politician, avoided any mention of the political implications: “While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court. My thoughts and prayers are with his family and his colleagues on the court who mourn his passing.”
When Obama does nominate a successor to Scalia, that could set the stage for a Republican filibuster in the Senate. If there is a filibuster of a nominee, it will be the first time that has occurred since 1968, when President Lyndon Johnson, blocked by Senate Republicans and Southern Democrats, reluctantly withdrew the nomination of his confidant Abe Fortas, whom he had appointed to the Supreme Court three years earlier, to succeed Earl Warren as Chief Justice.
That drama began in June of that year when Warren, a Republican known for his liberal decisions, informed Johnson that he intended to retire. Just months before Election Day, Johnson moved swiftly to nominate Fortas as a successor to the Chief Justice. But it emerged that Fortas had attended White House staff meetings, briefed Johnson on Court deliberations, and pressured senators to limit their opposition to the Vietnam War. Moreover, Fortas had been paid outside his salary to speak to students at American University. The Illinois Republican Everett Dirksen and others withdrew their support-sparking the first and, so far, the only Senate filibuster over a Supreme Court nomination. (Scholars and partisan opponents have debated, ever since, whether it was technically a filibuster or another form of parliamentary procedure, though Laura Kalman, a professor of history at the University of California at Santa Barbara, has said that “Abe Fortas and L.B.J. are spinning in their graves at the notion there was no filibuster.”)
While the White House weighs potential nominees, the courts and Presidential contenders face a range of puzzling implications. What will happen if the Supreme Court reaches a tie in any of the cases that are currently before the Justices? (The lower court ruling would stand but would not set a legal precedent.) Is there any liberal nominee who stands a chance of winning confirmation in a Republican-controlled Senate? (Early bets landed on Federal Appeals Court Judge Sri Srinivasan, an Indian-American jurist who has worked in both Democratic and Republican Administrations.) In his nomination to the U.S. Court of Appeals for the D.C. Circuit, Srinivasan won, in 2013, that rare achievement for a Democrat in today’s Washington-unanimous confirmation, with praise from Republicans.