By Matthew Miller
On February 13, Supreme Court Associate Justice Antonin Gregory Scalia was found dead in his room at Cibolo Creek Ranch, a luxury resort in western Texas. On the previous night, Scalia attended a small private function at the ranch in which he conversed with the forty odd attended before he retired to his room at around 9p.m. When he failed to show up for breakfast the following morning he was discovered lifeless in his room, where he was read his last rites by a local Catholic priest and subsequently pronounced dead. A federal official claimed that there was no evidence of foul play and that it appeared that Mr. Scalia had died of natural causes. He was seventy-nine years old.
Justice Scalia was known as an “originalist” for his strict interpretation of the Constitution as it was intended by the Founding Fathers. He defended his opinions with incisive and thought provoking language and wit during his thirty years of service on the nation’s most prestigious panel of judges. His rhetoric, combined with his staunchly conservative viewpoint caused its fair share of controversy, but this fact did not cause his peers to respect his judgements any less. In fact, The New York Times reported that a study in 2005 revealed that Scalia was, when measured by number of laughs produced amongst the nine Justices, by far the funniest of the bunch. This speaks not only to the professionalism of a group which almost by definition disagrees on a majority of issues, but to the rapport and respect Scalia had developed with his counterparts over the years. It is often mentioned that he and Associate Justice Ruth Bader Ginsburg—his near polar opposite when viewed through the lens of the political spectrum—were close friends.
But the Supreme Court is not meant to be a place for judges at the pinnacle of their profession to develop personal relationships with their peers. It is the country’s most powerful court and the decisions it hands down are the Supreme Law of the Land. The only avenues available to nullify a ruling are the following: a Constitutional amendment; a Congressional vote to change a law that the court has specifically ruled; the Supreme Court itself can decide a previous decision was wrong (e.g., Brown v. Board of Education which overruled Plessy v. Ferguson). In other words, once a decision has been handed down it is, for all intents and purposes, permanent. This leads into the more serious implications of Justice Scalia’s death. With his passing, the 5-4 majority conservatives enjoyed is gone, leaving in question contentious issues that are on the Court’s current docket, including abortion (Whole Woman’s Health v. Hellerstedt), religious freedom, immigration (United States v. Texas), voting (Evenwel v. Abbott), affirmative action, and unions (Friedrichs v. California Teachers Association). Objectively speaking, Scalia’s passing was a heavy blow to the GOP and conservatives across the country who were depending on his vote to affirm their arguments and beliefs in the form of a legally binding Supreme Court decision.
Now that there are currently eight serving justices, and the liberal/conservative split is currently 4-4, the cases that will end up evenly divided would simply revert to their respective lower court judgements. However, it is more likely that the Court will order these gridlocked cases to be reargued. This means that the most pressing ramifications of Justice Scalia’s passing will be who fills the position he has vacated. It is the President’s Constitutional right to appoint a nominee for the Senate to either reject or approve.
While judges are in theory apolitical, the nominating process is anything but. It took only a few hours before statements of condolence transitioned into arguments for how to best proceed nominating a new Justice. Not long after news of Scalia’s death rippled through the various forms of news and social media, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) stated, “The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year… It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”
Senate Majority Leader Mitch McConnell (R-Ky.) reaffirmed this belief when he said the next president should choose Scalia’s successor. Although it may come as no surprise that in 2005, he stated:
“Article II, Section 2 clearly provides that the President, and the President alone, nominates judges…
… I know that some of our colleagues’ wish that restoration of this principle were not required… For the first time in 214 years, they have changed the Senate’s ‘advise and consent’ responsibilities to ‘advise and obstruct.’”
President Obama, unsurprisingly, disagrees. This past Tuesday, the President challenged the Republican calls for delay when he declared, “The Constitution is pretty clear about what is supposed to happen. There’s no unwritten law that says that it can only be done on off years. That’s not in the constitutional text.” He is not wrong. And this week’s backtracking of Grassley’s firm position gives credence to this. When asked again about the situation, the Senator from Iowa said, “[I] would wait until the nominee is made before I would make any decision [on whether to hold hearings on a nominee]. In other words, take it a step at a time.”
The most recent election year appointee was Justice Anthony Kennedy, who was nominated by Ronald Reagan in 1987 (he was confirmed on February 3, 1988 in a 97-0 vote, a vote in which Grassley himself participated). However, on a slightly technical aside, this particular position was left vacant during the end of Regan’s third year in office (i.e., not during an election year) and is thus not exactly the same as the current situation. That is to say, Mr. Scalia passed during the election year, and Kennedy’s predecessor left during a non-election year even though Kennedy was confirmed during one. To find a more strict parallel, one would have to go back to FDR’s appointment of and the Democratic Senate’s confirming of, Frank Murphy during the President’s third and unprecedented term in office.
The problem for Republicans is that an attempt to delay Obama’s constitutional right to appoint a nominee will bring to the forefront all of these liberal-leaning issues during this presidential election year. With the aforementioned cases on the docket, the wrangling over a nominee’s credentials could be overshadowed by the issues being held in limbo. The last thing the GOP needs, to compound upon the confounding anomaly of Trump, is to bring to the forefront issues that are contentious enough to persuade people who normally would not vote to get out and do so. It would appear that with Senator Grassley’s most recent comments the winds are shifting in favor of a nominee being appointed by this President and not his successor.
As for potential candidates, the name given the most attention is United States Circuit Judge of Appeals for the District of Columbia Circuit Sri Srinivasan. He was confirmed to his present posting with a 97-0 vote and has served under both Presidents George. W Bush and Barack Obama as Principal Deputy Solicitor General of the United States. Whomever is finally chosen, confirmed, and sworn in, will have the honor of serving for life on the country’s most powerful court. Justice Antonin Scalia’s death has caused disruptive ripples in an already turbulent year. His successor will need at least a small portion of his wit to defuse the tension that he or she will inevitably be saddled with upon filling the void he leaves behind.