The Death of Justice Scalia Ups the Ante for the 2016 Campaign

The death of Supreme Court Justice Antonin Scalia last weekend has profound implications for the 2016 campaign. Not only does it stymie several important decisions that the Court was expected to rule on this year, but it has created the potential for a prolonged and politicized fight over a replacement for Justice Scalia.

The stakes are high as the highly respected and well-liked conservative Justice Scalia was often a swing vote in close decisions. President Obama, who ordered the nation’s flags flown at half-staff until the interment of the Justice, issued the following statement:

For almost 30 years, Justice Antonin Scalia was a larger-than-life presence on the bench. A brilliant legal mind with an energetic style, incisive wit, and colorful opinions. He influenced a generation of judges, lawyers, and students and profoundly shaped the legal landscape.

He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law. Tonight we honor his extraordinary service to our nation and remember one of the towering legal figures of our time.

The President’s eloquent remarks were quickly followed by a spate of less than gracious comments from the Republican candidates and Party leadership who called on the President to delay nominating a new Justice until after a new President is sworn into office more than eleven months from now. News of Justice Scalia’s death came just hours before the GOP debate last Saturday and about the only thing the Republicans could agree upon that evening was that the Republican-controlled Senate should refuse to consider anyone the President nominates. According to The Hill, GOP frontrunner Donald Trump said, “I think it’s up to Mitch McConnell and everybody else to stop it — it’s called delay, delay, delay.”

Not surprisingly, Hillary Clinton has a different and more grown up view on the issue. The Washington Post reported on remarks that Hillary made in Denver challenging the quick stand taken by the Republicans:

It is outrageous that the Republicans in the Senate on the campaign trail have already pledged to block any replacement that President Obama nominates.

Now I am sure we will all have a lot more to say about this in the coming days. So let me make one point. Barack Obama is president of the United States until Jan. 20, 2017. That is a fact, my friends, whether the Republicans like it or not. Elections have consequences. The president has a responsibility to nominate a new justice, and the Senate has a responsibility to vote.

For many Americans on both sides of the political spectrum, that sounds like a more reasonable way of looking at the process. To require the country to go for more than a year with a vacancy on the highest bench in the land seems a low-water mark even for Republican politicians who seem to enjoy behaving at their worse.

Of course, the Republicans are counting that one of them will win the White House next year as well as the Party maintaining control of the Senate, neither of which is a sure thing. To be sure, the political stakes are high as there are several major cases pending before the Court. CNN cites several cases as “blockbuster and consequential.” Among them is a ruling on public sector unions, race-based admissions, and the first major abortion case since 2007. The Court also has potential cases on voting rights, a challenge to Obamacare and the legality of President Obama’s immigration actions.

It would seem an opportune moment for both parties to show some all too rare bipartisan leadership. On his part, the President should choose a nominee that has already been through the confirmation process and received a substantial majority of support from Republicans. In the Senate, the Republicans should agree to give a fair hearing to the President’s nominee and show respect for the office of the President. The Constitution makes no provision for delaying the nomination for a year in the hopes that political fortunes will change.

The Los Angeles Times published a prescience opinion piece on February 2, 2016, by David J. Garrow titled “Four Supreme Court Justices are older than 75. Is that a problem?” In the article, Professor Garrow noted:

Today we have four Supreme Court justices who are superannuated: Stephen G. Breyer is 77, Anthony M. Kennedy will turn 80 this summer, Antonin Scalia will celebrate his 80th birthday on March 11, and Ruth Bader Ginsburg will celebrate her 83rd four days later.

Two of the Justices on the list (Breyer and Ginsberg) are considered liberal; Justice Kennedy is a moderate liberal while Justice Scalia was conservative. While not wishing ill of any sitting Justice it is reasonable to assume that the next President will have the duty of selecting replacements for three Justice’s, including two who are considered the most liberal on the bench.

As Hillary Clinton stated, it seems only reasonable that the current President, who will be in office until January 20, 2017, carry out his Constitutional duties and nominate a replacement. The Senate should then do its duty to “advise and consent’ on the legal qualifications of the President’s nominee and allow our great country to move past these silly partisan battles that only do harm.

If the Republicans continue to stonewall the due process consideration of the President’s nominee they run a great risk of angering the American public who will not only elect Hillary Clinton as President but may give her Party control of the Senate for good measure.