Justice Antonin Scalia, who died suddenly at the age of 79 on Saturday, was the most outspoken and visible member of the conservative bloc of justices on the US Supreme Court. At a time when politics in America are more polarized than they have been in decades, it is hard to imagine a more significant turning point for the Court and for the direction of public policy than his death. There have already been several analyses of the possibilities for what happens now.
Scalia was appointed in 1986 to replace Justice William Rehnquist, who in turn had been nominated to fill the vacancy left by retiring Chief Justice Warren Burger. Although he became a flashpoint for liberal interest groups during his three decades on the high court, Scalia’s nomination faced little opposition during the Senate’s confirmation process; his nomination was unanimously approved both by the Senate Judiciary Committee and by the full US Senate.
The same will not be true for the nominee to succeed him.
Making a Nomination
At the outset, it is important to note that there is plenty of time for a nomination to the Supreme Court to clear the US Senate. Nominations to the US Supreme Court historically have taken between two and four months for the Senate to process. Even contentious nominations, like Robert Bork’s in 1987 and Clarence Thomas’s in 1991, took 114 and 99 days, respectively, for the Senate to dispatch.
So, there is no reason for President Barack Obama, who has nearly 11 full months left in his administration, to forego making a nomination. It’s likely he’ll do it quickly, and smart money is on a nominee of impeccable educational, legal, judicial, and personal credentials.
Under ordinary circumstances, President Obama would be looking to replace Justice Scalia—the intellectual center of the conservative bloc on the Supreme Court—with someone who would shift the liberal voting bloc significantly to the left and anchor it there for decades to come. That would argue for appointing someone like Sri Srinivasan (age 48) or California Attorney General Kamala Harris (age 51) who, once confirmed, could remain on the court for a quarter century. Indeed, the New York Times’ first cut at potential nominees reads like a short list of the country’s young and liberal legal elite. And Srinivasan was widely predicted to be the next nominee after his unanimous confirmation to the District of Columbia Circuit Court of Appeals just three years ago.
But the current political climate may favor a safer choice—perhaps someone older (and therefore less likely to stay on the Court for more than a decade or so) and more moderate than the President might prefer under ordinary circumstances. As this argument goes, the President won’t want to give his political opponents any reason to delay or prevent the confirmation of his nominee, so he’ll forego some of the traits he might prefer in order to minimize potential flash points of conflict with the Senate. If he opts for this route, some prospects might include Circuit Court Judges Merrick Garland or Diane Wood.
The Confirmation Process
No matter who gets the nod, the Obama Administration is going to have to work very hard to get his nominee confirmed, even though the calendar suggests that there should be plenty of time to do so. That’s because it’s clear that Republicans currently have no intention of allowing President Obama to replace Justice Scalia.
Normally, once a nomination is received from the White House, it is referred to the Senate Judiciary Committee, which begins its own investigations into the suitability of the nominee, holds public hearings with the nominee, and then forwards the nomination to the full Senate for debate and a confirmation vote. Both parties have investigatory staff on the Judiciary Committee, and the Democrats will begin their work immediately. Barring any unforeseen disqualifier in the nominee’s background, the Democrats will be ready to hold hearings within a few weeks.
If the Republicans begin this process at all, which is unlikely at the outset, they’ll drag it out as long as possible, while trying to turn the public to their view—articulated by Republican Senate Majority Leader Mitch McConnell (KY) just hours after Scalia’s death—that President Obama should not have made a nomination at all, but should have allowed the next President to make the appointment. The Republicans will justify this position with references to the “Thurmond Rule,” which has typically described the difficulty that lifetime appointments to the federal bench face in the last six months of a presidential term, but which they will claim means that the President is not entitled to make an appointment in his final year in office.
In short, Republicans have made it clear that they intend to do whatever they can to avoid allowing President Obama a third appointee to the US Supreme Court.
Lauren C. Bell is Professor of Political Science and Dean of Academic Affairs at Randolph-Macon College in Ashland, Virginia.
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