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Antonin Scalia is dead, what happens now?

The death of Supreme Court Justice Antonin Scalia was barely more than a rumour before all the usual suspects got involved in the political game surrounding his replacement. While this may seem a crass development, the man did have a lifetime appointment, and as long as the love of the Court keeps most Justices from retiring voluntarily, this kind of spectacle is bound to happen from time to time. Nevertheless, a Supreme Court appointment is a mess of a procedure at the best of times, and this is certainly not that. So, what happens now?

When a Supreme Court seat needs to be filled, the procedure is pretty well laid out in the Constitution. It’s the President’s job to nominate a candidate, and the Senate’s job to “advice and consent” on the person he’s chosen. In practical terms, this means that the Senate holds hearings – often a long, gruelling process – and then holds a vote on the appointment. Technically, all that is necessary is a majority of the votes, but in reality the candidate is probably going to need 60 votes, what is called a filibuster-proof majority. As long as filibustering – taking over the Senate floor and talking for hours and hours to prevent the vote from happening – is an option, you’re going to need the 60 votes necessary to override a filibuster.

But there’s one more thing standing in the way. In order for the nomination to even make it to hearings, the Judiciary Committee has to allow that to happen. Every bill is prepared in one of the committees, and when it comes to appointments to the Supreme Court, that falls under the Judiciary Committee’s jurisdiction. The internal rules of this committee are complicated, but the basic gist of it is that if the Judicial Committee decides not to bring the nomination to the floor, it won’t make it there.

Antonin Scalia, Associate Justice of the Supreme Court of the United States. Source: Wikimedia Commons
Antonin Scalia, Associate Justice of the Supreme Court of the United States. Source: Wikimedia Commons

The first big thing that happened after the Scalia news broke was that Senate Majority Leader Mitch McConnell announced that he does not think Obama should nominate a new Supreme Court Justice. He reasoned that with only less than a year left in office, Obama should leave the nomination to the next President. Most of the Republican Presidential hopefuls echoed this sentiment, and have continued to defend this position on the campaign trail. President Obama, on the other hand, announced that he intends to “fulfill his Constitutional duty” and nominate a new Justice for Scalia’s seat.

If Obama isn’t able to bring the Senate around, he might have to resort to playing the public perception game. This can go in a few different ways. He might nominate a candidate that he’ll never get through this Senate, but who the Republican Party is going to pay a political price for refusing. The easiest way of achieving this would be by nominating a minority judge, especially a minority that is not currently represented on the Court. Refusing the first Asian-American nominee for the Supreme Court wouldn’t look all that great for the Republican leadership. He could also nominate a proper progressive (minority or not), the Justice he would ideally like to have on the Court, and hope that this candidate will be first in line for the next (presumably Democratic) President’s nomination.

The most obvious option is of course to negotiate with the Senate Republican leadership, to find a moderate who both camps find acceptable. If they keep following the hardline staked out by Mitch McConnell, this won’t be an option this time around.

The Senate Republicans also have a number of options, the political consequences of which are still unclear. Mitch McConnell has pointed to the most extreme of these choices, which is to not even let the nomination out of committee – that is, Obama’s chosen candidate would never even get a hearing.

The conventional wisdom suggests that the Senate Republicans should go for the less extreme version of obstructionism: to allow hearings to the full extent of procedure, and then simply vote it down. This is fully within their rights, but might bear some risks in the arena of public perception. As long as the view of the Supreme Court as a reasonably technocratic institution remains (as incorrect as that notion may be) it will be hard to justify the refusal of an obviously qualified candidate, and this might even further paint the Congress Republicans as obstructionist and stubborn, hurting them more than McConnell’s preferred method of stonewalling in the long run (and particularly in the Congressional elections this November).

Last but not least (especially in terms of accomplished nominations) there is the option of negotiating with the President, as mentioned above. On the surface, there are some candidates who Obama could plausibly nominate, who the Senate Republicans could also live with, the frequently mentioned as a candidate Sri Srinivasan perhaps chief among them. The case for why the Republicans should go for the compromise is laid out in more detail here. There is a reason that this is not likely to happen though, and that reason is the same as it almost always is: party polarization and the risk of primary challengers for Republicans in deep-red states.

The bottom line is that both the Senate Republicans and President Obama are going to hedge their bets based on what they believe is going to happen in the election this fall. There is going to be a new President, as well as probably some movement in the power balance of the Senate. Since Senators are elected for six-year terms, the batch that’s currently up for election includes the Senators who were elected in 2010 as part of the far-right Tea Party wave. This means a lot of vulnerable Republican seats, and the possibility of a Democratic majority in the Senate after the elections. The way Senate Republican leadership is playing the game right now would indicate that they don’t foresee losing their upper hand in the Senate anytime soon, though. When it comes to the White House, both sides seem to simply assume that their party will win the election in November, which means that one side is bound to lose big on bending the Supreme Court their way.

Klara Fredriksson

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