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  • Christopher Remillard

Who's Right About Scalia?

The death of Associate Justice Antonin Scalia, just half a month ago, has sparked a fiery new debate in American politics that has, like nearly every contemporary issue, fallen across partisan lines. Scalia was the Court’s most conservative justice, and the vacancy left in the wake of his death gives liberals a chance to occupy a Court majority for the first time since 1989. President Barack Obama, with 10 months left in his final term, has the opportunity to nominate Scalia’s successor. And despite his constitutional right to do so, a contentious political landscape defined by a polarizing election year may prevent another liberal justice from taking a seat both on America’s highest court and in Obama’s legacy.

Just hours after Scalia’s death was reported, Senate leadership was already at odds over naming a replacement. Republican Majority Leader Mitch McConnell insisted “the American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” Minority Leader Harry Reid swiftly responded, arguing “the President can and should send the Senate a nominee right away.” Reid criticized a potential vacancy, potentially the longest in history, as “unprecedented” and “shameful.” To understand the complexity of the issue, it is important to examine the arguments of both parties.

Let’s begin with the Republicans’ view. There is an obvious interest in keeping the court conservative, especially considering Associate Justice Anthony Kennedy’s tendency to vote liberal on social issues like gay marriage in 2013 and 2015. Republicans have enjoyed some history-making conservative decisions by the court during their 26 year reign, including Bush v. Gore, Citizens United v. Federal Elections Commission, and Burwell v. Hobby Lobby Stores, Inc. President Obama’s nominee, with a Republican-controlled Senate, frankly can’t be liberal, but the moderate that he does end up deciding on will never compare to the conservative giant that was Antonin Scalia. That constitutes a huge loss for conservative jurisprudence.

But there’s a meatier argument here on the part of Mitch McConnell, one that forgoes the triflingly partisan desire to hold a majority and charges straight to the heart of SCOTUS as an institution. It is the argument of democracy. McConnell asserts that “the American people” deserve a say in Scalia’s successor. It is a potent argument against a branch of government with a thick coating of democratic deficit. The President appoints, and the Senate confirms. The people watch, one democratic step removed from a decision that enacts an enduring ideological leaning on a massively influential political institution.

This is not the first time the undemocratic nature of the Supreme Court has been brought into question. Professor Gerald N. Rosenberg of the University of Chicago authored The Hollow Hope in 1991 examining the tension between the court’s independent ability to affect social change—through decisions like Brown v. Board of Education and Roe v. Wade—and the court’s need to maintain legitimacy by avoiding drastic strays from public opinion. Indeed, SCOTUS is held democratically accountable in a variety of ways, ranging from social pressure to our political delegation of appointment privileges to Congressional impeachment capacity. But, we don’t vote for justices, and justices serve life-long, sometimes generational terms. McConnell’s argument has its merits. Whether or not his intentions are as noble is questionable.

The Democrats hold a different stance. Like Republicans, they have a vested interest in shifting the Court ideologically towards them. This is compounded by the important issues facing the Court this year, including abortion (Whole Woman’s Heath v. Cole), contraception (Zubick v. Burwell), immigration (United States v. Texas), and voting rights (Evenwel v. Abbott). Tie votes on the court, expected in all of these cases, uphold the lower court’s decision but don’t set national precedences. That’s bad news for liberals, who would lose three out of the four above cases in the event of a tie.

But, again like Republicans, the Democrats have a sturdier argument. Let’s first examine Reid’s “unprecedented” charge. There has only been one Supreme Court nomination during an election year that did not result in a confirmation in the last 116 years. President Lyndon B. Johnson nominated Abe Fortas, already an Associate Justice at the time, to replace Chief Justice Earl Warren in 1968. The Republican Party filibustered the nomination as a way of protesting the court’s jurisprudence, not Johnson’s right to nominate during the final year of a term. The precedent for nominating during an election year lies with Obama, not Republicans. Historically, presidents have made successfully confirmed nominees in election years during January (Wilson 1916 and Roosevelt 1940), February (Hoover 1932), March (Taft 1912), and even as late as July (Wilson 1916).

Further, the length of the vacancy left by Scalia can also be characterized as unprecedented. On the date of Scalia’s death, February 13, 2016, Obama had 342 days left in his presidency. Assuming the new president made the nomination on his or her first day in office, January 20, 2017, there would be only 49 days to confirm that nominee before the vacancy would be the longest in American history. The average length of time between nomination and confirmation of the eight sitting justices is 68 days. If Republicans block an Obama nomination, it is likely the vacancy will break the record.

But, technical arguments aside, let’s explore Reid’s “shameful” charge. He is correct that Republicans would not only be shirking their own Constitutional obligation to confirm—or deny— but would also be hindering President Obama’s obligation to appoint by filibustering. Despite a purported democratic deficit, the people delegated appointment power to Obama for his full term, not his term minus the last year. Finally, and most soberingly, Republicans would disrespect the legacy of their beloved Antonin Scalia, a champion of originalist jurisprudence, an immovable force in upholding the exact wording of the Constitution in our country. And the Constitution tells President Obama to nominate.

The positions of the Parties are, after all, to be taken with a grain of salt. It is likely that if the positions were reversed, a Democrat-controlled Senate would block a Republican nominee in a term’s final year, probably with the same arguments set forth by Republican leadership now. And vice versa. That’s the irony in it all: the more partisan the parties become, the closer together they appear. And the people watch.

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