Replacing Justice Scalia

By Alexander Billington

The recent death of Supreme Court justice Antonin Scalia has sprung a number of political debates among democrats and republicans. According to The New York Times, Scalia was found dead on Saturday, Feb. 13, at a resort in West Texas where he was on a hunting trip.


Scalia was known as the most conservative judge during his three decades on the bench. He practiced from an originalist perspective, which is the view that the constitution should be interpreted as was intended at the time it was written. It is this conservative approach that proved dominating in the infamous Citizens United case, which opened the doors to unlimited campaign contributions and has since been a highly contested decision among politicians in Washington.


In the wake of Scalia’s death, the main debate is over who will nominate his replacement. When a Supreme Court justice passes away or retires, the current president nominates a successor; the Senate must then approve that successor. Typically, a democratic president would nominate a progressive justice, and a republican president would nominate a conservative one, resulting in a balanced bench. With Scalia’s death, the court is now level at four progressives and four conservatives, and the political origin of the newest justice is an issue that isn’t being taken lightly.


President Obama still has 340 days in office until the next chief executive is sworn in. This is ample time for Obama to give his nomination to the Senate. The problem is that the Senate is under republican rule, which means Obama’s replacement can’t lie too far to the left if he wants to get his guy on the bench.


Although just days have passed following Scalia’s death, there has already been controversy surrounding the next justice. In a Politico article, it was reported that “Senate republican majority leader Mitch McConnell said the Senate should not confirm a replacement for…Scalia until after the 2016 election.”


The statement caused an uproar within the democrats in the Senate. The New York Times reported that, “refusal to even hold a hearing would amount to an outrageous act of obstructionism.” New York State Senator Chuck Schumer added, “McConnell’s precipitous action is reminiscent of his statement in 2010 that his prime goal was to prevent Mr. Obama’s re-election.”


It is clear that the democrats are condemning the republican’s attempt to block the president’s nomination, but history speaks loud and it speaks clearly. According to a 2007 Politico article entitled “Schumer to fight new Bush high court picks,” Schumer said the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.” Although this seems similar, the motivations are different. The current motivations for republicans are that they do not want to have a democratic majority on the bench; the motivations back in ‘07 was to prevent a much greater imbalance of a 7-3 republican majority.


It seems that no matter how moderate an Obama nomination would be that the republicans will refuse to pass it; however, republicans have a couple of key variables to weigh in. Firstly, if they do hold out for a republican win in November and the democrats take it, then the new president will most likely push someone more liberal than Obama’s nomination. Secondly, moderates may be compelled to vote left if they fear another conservative judge may prevent reviews of crucial issues such as campaign finance, abortion rights, and Obama’s use of executive actions on immigration.


In a Huffington Post article, it was reported that “conservatives have had a functional majority…since 1991.” If Obama does manage to replace Scalia, the American people could see a court willing to set progressive legal precedents. Campaign finance, a prominent talking point of this election given Senator Bernie Sanders’ rejection of big money, could be one case that a liberal court may decide to take on, enacting regulation that conservatives would be greatly unhappy about.


The biggest question regarding the current controversy is how just is the republican move to block a democratic replacement for Scalia? At face value, it seems there really is no cause for blocking the nomination other than the republicans making a power grab; they’ve had a majority since ’91, but the Constitution requires the current president to nominate a replacement – a replacement that would leave the democrats with a 5-4 majority.


If the republican Senate majority does enact McConnell’s plan, American voters have yet another element to take into consideration during the 2016 election, especially given the age of Justice Ginsburg and Justice Kennedy. If a republican takes control of The White House come January and the Senate refuses an Obama nomination, the court could see a 6-3 republican majority in the next five years. If a democrat takes The White House and the Senate allows an Obama nomination, the court would see a 6-3 majority for the democrats.


With the incoming president being decided by the people, it seems that allowing the current president to do what he was nominated to do may be the most just course of action for the Senate.



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