What happened
The unexpected death of Supreme
Court Justice Antonin Scalia ignited
a fierce political battle this week, as
Republicans insisted that the right to
appoint his successor should go to the
next president rather than President
Obama. Scalia, a conservative icon who
left an indelible imprint during his 29
years on the court (see Controversy),
died of natural causes at the age of 79
during a hunting trip at a Texas ranch.
Republican Senate Majority Leader
Mitch McConnell immediately declared
that Scalia’s replacement—who must be
approved by the Republican-controlled
Senate—should be chosen by the winner of the presidential election,
rather than let Obama shift the political balance of the closely
divided court. “The American people should have a voice in the
selection,” McConnell said. That stance was widely backed by
other Republican senators and the party’s presidential candidates.
President Obama vowed to put forward an “indisputably qualified”
candidate, and said Senate Republicans had an obligation to hold
hearings and a vote. “The Constitution is pretty clear about what is
supposed to happen now,” he said.
If Obama’s nominee is blocked, the Supreme Court will continue
ruling on cases with only eight members for at least 11 months.
When the justices are deadlocked 4-4, the lower court’s decision
is upheld, without creating a legal precedent. Nine of the 13 U.S.
Courts of Appeal have a majority of Democratic appointees. The
appeals court favored liberals in several current cases, including
challenges of Obama’s restrictions on power plant emissions and
of mandatory contraception coverage in the Affordable Care Act.
But lower court rulings went against Obama’s executive action to
shield 4 million undocumented immigrants from deportation, and
upheld Texas abortion restrictions.
What the editorials said
“The obstructionism being threatened by Senate Republicans is
outrageous,” said the Los Angeles Times. The American people
already “have a voice” in nominating Supreme Court justices—
they “spoke” when they re-elected Obama for a four-year—not
three-year—term. Conservatives cite the
“Thurmond Rule,” a supposed tradition
that the Senate doesn’t act on judicial
nominations during an administration’s
final year. But that rule “has no formal
status and has not been consistently
honored”—a Democratic-controlled
Senate confirmed Justice Anthony
Kennedy in the election year of 1988,
after he was nominated in November
1987. If Republicans refuse to consider
any Obama nominee, “their partisanship
and disrespect for the court will be
blatantly obvious.”
The reality is that no one Obama nominates
“has a chance to be confirmed,”
said The Wall Street Journal. “The
stakes are simply too great.” Several
recent landmark rulings—the right
to bear arms enshrined in District of
Columbia v. Heller; the striking down
of campaign funding limits in Citizens
United—were decided 5-4, and could
easily be overturned by a liberal
majority. Besides, Democrats would
feel the same way if the positions
were reversed. Indeed, Sen. Chuck
Schumer called on his fellow Democrats
in 2007 to “reject, sight unseen,
any of George W. Bush’s nominees” if
a Supreme Court vacancy came up.
This “incendiary, high-stakes confirmation
battle” will be “front and
center” in the election, said the Chicago Tribune. Each party will motivate
its base with dire warnings of what laws and precedents a new
justice might help overturn, and presidential candidates will be pressured
to name whom they’d select if they won. “It’s often said that
the court follows the election returns. This year, it will shape them.”
What the columnists said
Republicans are taking “an astonishing gamble,” said Mark Joseph
Stern in Slate.com. If they retake the White House and “keep the
Senate red,” they win their big bet, and will be able to appoint their
dream Scalia successor. But if the Democrats swoop to a double
victory, the new president will be free to pick a very liberal nominee,
and “no conservative precedent would be safe”—not Heller,
not Citizens United, not the death penalty. Why don’t Republicans
at least consider a “compromise candidate”?
The party’s base wouldn’t stand for it, said Michael Gerson in The
Washington Post. Besides, it’s the Democrats’ fault that the nomination
system is “broken beyond recognition.” They created a new
standard for rejecting candidates “in ideologically decisive nominations”
in 1987, when they blocked the nomination of Ronald
Reagan appointee Robert Bork. Republicans “should hold firm,”
said Rich Lowry in NationalReview.com. Obama has trampled
on the Constitution and the rightful powers of Congress “at every
opportunity,” and the Senate owes him nothing.
If Republicans keep this vacancy open for the rest of Obama’s term,
the partisan warfare in Washington will
“get even worse,” said Paul Waldman
in WashingtonPost.com. Both parties
used to defer to the president on
Supreme Court appointments; Scalia
was confirmed 98-0. But the last four
justices have all been opposed by a
majority of the opposition party. As
partisan rancor has grown, Republicans
have “grown more procedurally
radical,” flouting “formal and informal
norms that make government work” to
block Democrats from doing anything
at all. If the GOP retains its Senate
majority, “it could mean that no justice
could be confirmed until there’s a Republican
president.” The court may be
stuck with eight members, or fewer, for
years to come.
What next?
The big question for Obama is “what kind of candidate
to nominate,” said Russell Berman in The
Atlantic.com. He could go with a “centrist choice”
who’s harder for the Republicans to oppose—
someone like Sri Srinivasan, who was confirmed
to the D.C. Circuit Court of Appeals by a 97-0 vote,
or another D.C. Circuit judge, Merrick Garland,
whom Republicans have singled out “as the kind
of consensus pick they could support.” Alternatively,
knowing that Republicans will reject whomever
he nominates, Obama could try to energize the
base and make Republicans look bad by forcing
them to block a woman, an African-American, or a
Hispanic. Whomever the president chooses, he or
she is “probably doomed from the start.”
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