On Feb. 19, the body of U.S. Justice Antonin Scalia was laid in repose at the nation’s Supreme Court in Washington, D.C. A service was presided over by Scalia’s son, an ordained Catholic priest. Officials from the highest levels of government, the legal system, and conservative circles gave a steady procession to pay their respects to the first Italian-American to be appointed to the country’s pinnacle judicial court. Justice Scalia was found the morning of February 13, having passed away in his sleep.
Scalia’s death has spawned three story-lines. First, there are the conspiracy theorists who want his death to be investigated further. These theories spawned from the absence of conducting an autopsy, and a report that Scalia was found with a pillow over his face – a misinterpretation of the official report which had mentioned a pillow over his head. The second twist was that the Texas hunting ranch where Scalia frequented as a guest is owned by John B. Poindexter, whom Scalia had favoured in his role as Supreme Court Justice. The Court had declined to hear an age discrimination case against a subsidiary of Poindexter’s manufacturing firm.
The biggest consequence of Scalia’s death will be whether the nominee to fill the Supreme Court vacancy will be confirmed before the next President is elected. The U.S. Constitution empowers the President to put forth a Supreme Court nominee, to be confirmed by the Senate. But with the upcoming November election, Republican Senators and Presidential candidates have called for any nominee to be delayed or blocked until the next President’s election. The standard line from the Republicans has been “to let the people decide”, countered by the argument that the Senate is obligated to take up the vetting process as per their Constitutional responsibilities. The counter-reply is that the Constitution sets no timeline for the Senate to make the appointment. Those in support of nominating someone now also bring up the point that the people did decide, by entrusting Obama to uphold his constitutional duties for all four years of his term when they elected him in 2012. Both parties will likely use the eventual appointment as fodder to turn out their supporters in the Presidential and Congressional elections this fall.
Prior to Scalia’s death, the court was generally divided 5-4 leaning toward conservative. Scalia would fall as one of the furthest out on the conservative right of the political spectrum, relative to the rest of the bench. A liberal/democrat-leaning Justice would swing the Court’s balance back to the left, which will influence future decisions regarding subjects such as Obamacare, immigration reform, and campaign finance reform.
The Supreme Court has become much younger under the Bush and Obama administrations with appointments such as Chief Justice John Roberts, Justice Sonia Sotomayor and Justice Elena Kagan. Presidents rarely nominate a judge who overtly contrasts their political ideology, so a Republican Congress is going to attempt to delay any Obama nominee. President Obama has vowed to put forward a name “in due time” before his presidency ends.
Appointments have been made in the last year of a President’s term, but will Republicans be able to run out the clock without this overt obstructionism costing them politically? What hangs in the balance of this next election is the potentially 1-3 Justices retiring over the next 4-8 years, such as Justice Ruth Bader Ginsberg and Justice Clarence Thomas. Politically, it’s a big bonus prize to be won.
Ginsberg, a liberal-leaning Judge is likely the next to retire, so the next four years could be instrumental to swinging the court further right if the Republicans take the White House. Theoretically, if the Republicans take the 2016 Presidency before Scalia is replaced, they could swing a 6-3 majority of conservative judges. This swing could mean the overturning of Roe v. Wade, a crucial abortion rights judgment.
President Obama is likely to nominate someone very tough to vote against. One name bandied about is Sri Srinivasan, who was unanimously approved 98-0 in 2012 when Obama nominated him for the D.C. Circuit Court of Appeals. Aside from just appointing a qualified judge, a tough nominee to deny will expose blind partisanship. The political angle is forcing Republican Senators up for election, including Ted Cruz (R-TX) and Marco Rubio (R-FLA), to choose between obstructionism and cooperation with the Obama White House. Despite Congress having abysmally low approval ratings, it appears as though candidates think Republican voters will still favour opposition to the Obama White House, for now. It may be a case of playing to one’s base, but it may chase moderates and independents away in the general election.