Justice Antonin Scalia died at his ranch in west Texas yesterday. His death was a surprise because he was not known to have health issues. Steve Benen (MSNBC/MaddowBlog) explores the political and judicial implications.
His death, of course, creates conditions that are likely to rock the political world for much of 2016. The current Supreme Court has earned a reputation for being friendly to the right, thanks largely to a five-member conservative majority, with justices who were appointed by Republican presidents.
Scalia’s passing obviously changes that equation, offering President Obama an opportunity to not only replace one of the court’s most reliable far-right jurists with a center-left successor, but also to shift the balance of ideological power on the Supreme Court and quite possibly change the direction of American jurisprudence for many years to come.
Obama has already placed two progressive justices on the Court – Sonia Sotomayor and Elena Kagan – but in both of these cases, this president’s nominees were replacing justices who were already considered members of the center-left contingent, leaving the larger balance of the institution unchanged.
Replacing Scalia, however, is a different story entirely.
What’s unclear is what the Republican-led Senate intends to do under these circumstances. Though Scalia’s death comes as a surprise – he was not thought to be ill – it seems likely the White House will nominate a successor sometime fairly soon.
What happens next is poised to quickly become the most important mystery in the country. How will the Senate’s GOP majority respond to such a nomination? Could anyone, regardless of merit, be confirmed by Republicans given the enormity of the stakes? Is the Senate prepared to simply leave an eight-member Supreme Court in place – four conservatives and four progressives – for the next 11 months, in the hopes that a far-right presidential candidate will take office next January?
At this point, we don’t have answers to any of these questions.
What we do know is that the future of the Supreme Court has suddenly gone from the political world’s background to its center stage. Any time there’s a vacancy on the high court, it’s an enormous and significant story, but this one, in particular, creates a political dynamic unlike anything Americans have seen in a very long time – and quite possibly, ever.
Already the right-wing-nuts are threatening to block any nomination for the 9th seat on the court. I'll start with the essential parts of the GOP presidential candidates' responses from the transcript of last-night's GOP debate in South Carolina
DONALD TRUMP: I– I think he’s going to do it whether I’m okay with it or not. I think it’s up to Mitch McConnell and everybody else to stop it. It’s called delay, delay, delay. (APPLAUSE) (CHEERING)
GOV. JOHN KASICH: Here’s my concern about this. The country’s so divided right now, and now we’re going to see another partisan fight taking place. I really wish the president would think about not nominating somebody. If you were to nominate somebody, let’s have him pick somebody that is gonna have unanimous approval and such widespread approval across the country that this could happen without– a lotta recrimination. ... I think that we oughta let the next president of the United States decide who is going to run that Supreme Court with a vote by the people of the (BELL) United States of America. (APPLAUSE)
BEN CARSON: ... we should be thinking about how can we create some healing in this land. But right now, we’re not gonna get healing with President Obama. That’s very clear. So I– (BELL) fully agree that we should not– allow a judge to be appointed during his time.
MARCO RUBIO: ... , I do not believe the president should appoint someone. ... Someone on this stage will get to choose the– the balance of the Supreme Court. And it will begin by filling this vacancy that’s there now. And we need to put people on the bench that understand that the constitution is not a living and breathing document. It is to be interpreted as originally meant. [ _But it took some work by the moderator to get this out of him._ ]
JEB BUSH: ... the president, by the way, has every right to nominate s– Supreme Court justices. I’m an artic– Article II guy in the constitution. We’re running for the president of the United States. We want a strong executive for sure. But in return for that, there should be a consensus orientation on that nomination. And there’s no doubt in my mind that Barack Obama will not have a consensus pick when he submits that person to the Senate.
SEN. TED CRUZ: Well, we have 80 years of precedent of not confirming Supreme Court justices in an election year. ... [ _More blither here._ ]
Let's take a break from the right-wing blather and see what the Constitution actually says in Article II.
The President ... shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court ...
Shall nominate, Mr. Cruz. Shall, Mr. Kasich. Not maybe. Not the next president, Mr. Trump. Not delay until it pleases some partisan group, Mr. Bush. Not "just say no", Mr. McConnell.
In the end, it comes down to this (from the Editors of the NY Times).
... It took about 10 minutes after the announcement of his death for the right wing to start screaming that the Senate should not confirm a replacement while President Obama is in office.
(See, for example, the tweets from a GOP staffer.)
The Times Editors continue.
Given how blindly ideological the Republicans in the Senate are, after nearly eight years of doing little besides trying to thwart Mr. Obama, it is disturbingly likely that Mitch McConnell, the Senate majority leader and architect of the just-say-no approach, will lead his colleagues in keeping Justice Scalia’s seat open, and the highest court in the land essentially paralyzed, in the hope that one of the hard-right Republicans running for the presidency will win.
Mr. McConnell announced on Saturday night that “this vacancy should not be filled until we have a new president,” claiming that he wanted to give American voters the chance to decide.
The question now is whether the Senate will honor Justice Scalia’s originalist view of the Constitution by allowing President Obama to appoint a successor, and providing its advice and consent in good faith. Or will the Republicans be willing to create a constitutional crisis and usurp the authority of the president to ensure that the Supreme Court functions as one branch of this government?