The recent death of Supreme Court Justice Antonin Scalia offers the greatest opportunity for the court’s dynamic to change in years. If Scalia were to be replaced by a liberal or even moderate justice, that appointment could impact the court even three decades from now. With President Obama’s term coming to an end, the coming weeks could lead to an unanticipated victory for liberals and frustrations for conservatives.
While the President does not have complete control of the court’s appointment process, he certainly has the most important individual role. The executive branch directs the appointment, which requires a majority vote of the Senate. With so much at stake, Republicans are sure to provide resistance.
Accordingly, Senate Majority Leader Mitch McConnell announced his intention to oppose any nomination by the Obama administration, intending to stall the process until another president is elected. In doing this, he hopes a Republican administration will be put in place and provide the Senate with a conservative appointee. With Republican presidential candidates encouraging McConnell and his senate colleagues to do this, their threats seem to carry some weight.
In an effort to pull public opinion into their corner, both sides of the aisle have presented public arguments for their cause. Republicans reference a long-standing but not constitutionally specified precedent of not confirming or appointing Supreme Court nominees in presidential election years. Any observance of this precedence is murky. Ironically, Ronald Reagan, the sweetheart of the neoconservative movement, interfered with this purported tradition by nominating Justice Anthony Kennedy in 1987 but not receiving confirmation until 1988, an election year. Current conservatives cite a distinction between appointment and confirmation, but liberals label Kennedy’s appointment as a violation of this precedent thus validating Obama offering the Senate an appointment hearing.
Democrats also reference supposedly apolitical reasons for President Obama to proceed in nominating a Supreme Court justice. Without an appointment and confirmation, the Supreme Court would be left split four versus four along distinct ideological lines for the better part of a year with the new president only assuming power in January of 2017. Justices Ginsburg, Breyer, Sotomayor and Kagan represent the liberals and Justices Thomas, Kennedy, Roberts and Alito constitute the conservative faction. With a split such as this, important court cases coming to the Supreme Court could be left without a ruling. In that case, lower courts would issue the binding verdicts. However, both sides of the aisle find this predicament to be less than ideal, so Obama has good reason to want to push a nominee through.
As is often the case, the status of the court appointment depends less on legality and more on public opinion. Since the Supreme Court is meant to be separate from the temporary sway of politics, as is evident in their lifelong appointments and social isolation from members of Congress, this is a disconcerting reality. Both sides have enough material to proceed on their current paths to use the vacant position for political gains. Conservatives wish to continue the status quo as it was before Scalia died, while liberals wish to change the direction of the court.
At this moment, the only thing that would prevent President Obama from nominating a justice is the solidarity of the conservative Senate. It seems that the only way to break this firewall is to nominate a relatively conservative justice or to use public opinion to shame the Senate into confirming a candidate that is clearly qualified. It seems that in this situation we can only wait until might makes right.
Scott Johnson ’18 (johnso16@stolaf.edu) is from Gladstone, Mo. He majors in economics.
