The death of United States Supreme Court Justice Antonin Scalia this past Saturday has rocked the political world. For years, the highest court in the land – which frequently takes on cases involving hot button political issues such as Second Amendment rights, abortion, affirmative action and same-sex marriage, to name a few – has been considered to have a 5-4 conservative majority, although Justice Anthony Kennedy has been known to be a “swing” vote depending upon the issue.
Under the U.S .Constitution, the President nominates a potential Supreme Court Justice, and the United States Senate holds hearings on the nominee and ultimately decides whether to confirm the nominee. Hence, with the passing of Justice Scalia, who was appointed to the Court by President Ronald Reagan in 1986 and was perhaps the leader of the Court’s conservative wing, the potential exists for President Obama to nominate as his successor someone who will swing the Court in a more liberal direction, as was the case in the 1960s and 1970s.
That Justice Scalia’s death comes in a Presidential election year, with the U.S. Senate controlled by one party and the President being from another party, sets the stage for an epic showdown over the direction of the Court, potentially for years to come.
Here’s a primer on a few of the important issues related to the upcoming nomination fight:
1. Has a Supreme Court Seat Been Filled in an Election Year? Yes. Fourteen Justices have been appointed in a Presidential Election year: Oliver Ellsworth (1796), Samuel Chase (1796), William Johnson (1804), Philip Barbour (1836), Roger Taney (1836), Melville Fuller (1888), Lucius Lamar (1888), George Shiras (1892), Mahlon Pitney (1912), John Clarke (1916), Louis Brandeis (1916), Benjamin Cardozo (1932), Frank Murphy (1940), and Anthony Kennedy (1988). Note, however, that all but one of these appointments occurred prior to World War II during a time when the political parties were less diametrically opposed philosophically. Further, the only post-WWII appointee, Justice Kennedy, was actually the third choice for a seat vacated by Justice Lewis Powell in July 1987 (the first two being Judge Robert Bork and Judge Douglas Ginsburg).
2. Can’t President Obama Make a Recess Appointment? Yes. In this era of divided government, Presidents have been known to fill vacant cabinet positions, agency heads and judgeships while the Senate is in recess. In that case, if the Senate does not act to confirm the appointee when it returns to session, the President’s appointment is vacated.
Technically, with the Senate currently recessed, President Obama could make a recess appointment of Justice Scalia’s replacement today. However, only once has a President made a recess appointment of a Supreme Court Justice (in 1956, when President Dwight Eisenhower appointed William Brennan to the Court), and the Senate later confirmed the appointee. An interesting sidenote to the Brennan appointment is that in 1960 Senate Democrats passed a resolution expressing the sense of the Senate that recess appointments of Supreme Court Justices should not be made.
3. Do the Republicans Have Any Precedent to Block Any Appointment? Not surprisingly, following Justice Scalia’s death, Senate Majority Leader Mitch McConnell stated that he did not intend to hold hearings on any potential replacement nominated by President Obama given that he leaves office next January, and instead suggested that the American people should have a say, meaning that voters in November should have the right to choose the future direction of the Court through their choice for President.
While Democrats have criticized Senator McConnell’s position (even though Senator Charles Schumer spoke out in 2007 against confirming any future Supreme Court appointees by then President George W. Bush over a year before the expiration of his term, and then-Senator Barack Obama filibustered the appointment of Justice Samuel Alito to the Court) , there is precedent for it. In June 1968, an election year, Chief Justice Earl Warren announced that he’d be retiring from the Supreme Court, and President Lyndon Johnson moved to elevate Associate Justice Abe Fortas, a longtime friend and ally, to the top spot. But a coalition of conservative Republicans and Southern Democrats blocked Fortas’ rise. He remained associate justice, and a new chief justice wasn’t appointed until President Richard Nixon took office the following year. However, when it came time for President Nixon to appoint his next Justice, those Senators who wound up on the losing side of the Fortas fight pushed back on President Nixon’s appointees until he settled upon Harry Blackmun, who would go on to author the Court’s majority opinion in Roe v. Wade.
4. What Happens to Cases With Tie Votes? The Supreme Court recently concluded oral arguments on an array of controversial cases having to do with abortion, affirmative action, Obamacare (yes, again) and forced unionization. With Justice Scalia’s death splitting the court into two equal groups of four Justices, what will happen to these cases? Contrary to what some have said, a tie vote will not result in the lower court’s ruling being affirmed. Instead, based upon past precedent, the most likely outcome will be that the case will be reargued in front of the Court once Justice Scalia’s successor has been confirmed.
5. What’s the Most Likely Scenario? It is too early to tell, and much will depend on who President Obama ultimately nominates to replace Justice Scalia. If he picks a more moderate “consensus candidate”, Republicans are going to have a more difficult time opposing that appointment. If, however, the President appoints someone more closely aligned with his political philosophy (as was the case with his previous appointees, Justices Sotomayor and Kagan), it is likely that the Republicans will feel compelled to block the nomination and then the political food fight will likely continue into the November elections.
One last point: the “epic” battle that the media is making this appointment out to be may ultimately be over a short lived shift in the Court’s direction. Justice Scalia’s best friend on the Court, Justice Ruth Bader Ginsburg, is 82 years old and has battled some health issues in recent years. Thus, depending upon the outcome of the Presidential election, we could be seeing a similar battle in the coming years over yet another shift in the Court’s direction.
So what is the takeaway here? It’s that elections matter. When we vote for a President, we are not only voting in regards to taxes, jobs and the economy, but we are also determining the direction of the highest court in the United States when it comes to the most fundamental rights we are endowed with.