DEATH, UNCERTAINTY, OPPORTUNITY

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The unexpected death of U.S. Supreme Court justice may have far-reaching impact, both legally and politically.

COMPILED FROM WIRE REPORTS

WASHINGTON – President Obama will select a nominee to succeed the late Supreme Court Justice Antonin Scalia, despite fierce opposition by Republican leaders who prefer the seat be left vacant for nearly a year so that it can be filled by the next president.

U.S. Supreme Court Justice Antonin Scalia, (bottom row, second from left) was one of the court’s most reliably conservative votes.(FILE PHOTO)

U.S. Supreme Court Justice Antonin Scalia, (bottom row, second from left) was one of the court’s most reliably conservative votes.
(FILE PHOTO)

Scalia, 79, who was found dead at a resort in Texas on Feb. 13, was one of four justices who formed a reliable conservative block, although that broke down on some contentious issues, notably the health care law of 2010. Chief Justice John G. Roberts Jr., Samuel A. Alito Jr. and Clarence Thomas are the other three.

Justice Anthony M. Kennedy is often the swing vote who could determine whether the court would rule with the conservatives or the four liberal justices. Scalia’s absence means five votes are less likely to be found for a conservative majority.

Doing his duty
Obama said in a statement last week, “I plan to fulfill my constitutional responsibilities to nominate a successor in due time.  There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.  These are responsibilities that I take seriously, as should everyone.  They’re bigger than any one party.  They are about our democracy.”

Scalia, one of the most conservative members of the court, died of an apparent heart attack over the weekend while on a hunting trip in Texas. He was part of the 5-4 conservative majority on the nation’s highest court.

160219_front01bWere he to be replaced by a moderate or liberal jurist, that would shift the balance of the court – something Republicans had pledged to fight against.

Under the constitution, the president has an obligation to appoint the Supreme Court justice, who must then be confirmed by the Senate. However, conservatives who normally boast of being strict adherents of the U.S. Constitution, are altering that stance in a presidential election year.

No action
Senator Majority Leader Mitch McConnell (R-Ky.), who had already pledged to block any Obama nominations prior to Scalia’s death, urged President Obama not to submit a nominee and said if Obama does, the Senate will not act on the nomination prior to the expiration of Obama’s term next January.

“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement. “Therefore, this vacancy should not be filled until we have a new president.”

Democrats countered that the American people made their voice heard in the last two presidential elections, voting Obama into office in 2008 and re-electing him by a wide margin in 2012.

Senate Minority Leader Harry Reid (D-Nev.) issued a statement saying, “The President can and should send the Senate a nominee right away…It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”

The record appears to support Reid. Writing on the Supreme Court site SCOTUSblog, Amy Howe observed, “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.”

Ironically, McConnell and every other Republican voted on Feb. 2, 1988 to confirm Ronald Reagan’s Supreme Court appointment in his last year in office, which was also an election year. The Senate, then under Democratic control, voted 97-0, with three absent, to confirm Kennedy. He was supported by 51 Democrats and 46 Republicans.

No Black liberal
Because of the lack of a progressive Black voice on the Supreme Court, some Obama supporters have urged him to nominate a Black woman – either Attorney General Loretta Lynch or California Attorney General Kamala Harris, a Howard University graduate – to fill that vacancy.  (Harris removed her name from contention on Wednesday.)

Former U.S. Attorney General Eric Holder, among others, was also mentioned as a possibility.

However, as of this week, the leading candidate appeared to be Sri Srinivasan, a judge on the District of Columbia Circuit Court of Appeals – a popular stepping stone to the Supreme Court. The son of immigrants from India, he clerked for conservative appeals court Judge J. Harvie Wilkinson and Sandra Day O’Connor, a frequent swing voter on the Supreme Court before she retired.
Srinivasan, 48, former chief deputy to the U.S. solicitor general, was confirmed for his present position by the Senate by a vote of 97-0 in 2013, a fact Obama may hope would make his nomination more difficult to oppose.

Important cases delayed?
A ruling in at least a six major court cases may be postponed until a new justice is seated. The cases involve:
•Whether universities can use race as a factor in admissions (Fisher v. University of Texas at Austin);
•Whether states can change how voting districts are drawn based on total population or the number of eligible voters (Evenwel v. Abbott and Harris v. Arizona Ind. Redistricting);
•Whether unions can collect fees from non-union workers to use for collective bargaining (Friedrichs v. California Teachers Association);
•Whether states can impose strict medical regulations on abortion clinics that may cause many of them to close (Whole Woman’s Health v. Cole);
•Whether religious nonprofit groups can be required to provide employees with birth control that conflicts with their religious beliefs (Zubik v. Burwell); and
•Whether the federal government can defer deportation of undocumented immigrants and give them legal protection.

GOP slowdown
The threat to sideline any Obama nomination to the Supreme Court follows a Republican slowdown of judicial appointments already underway.

According to a Brookings Institution study in September, “Senate Republicans’ aggressive slowdown in judicial confirmations so far in 2015 – and what is likely to be a continued slowdown through 2016 – are contrary to the confirmation records in the final two years of the other two-term presidencies since 1961 – Ronald Reagan, William Clinton, and George W. Bush.”

And the obstruction is not limited to judges. According to an investigation by Politico, “New data compiled by the Congressional Research Service and obtained by politico found that the Senate in 2015 confirmed the lowest number of civilian nominations – including judges and diplomatic ambassadors – for the first session of a Congress in nearly 30 years.”

Political impact
Obama’s successor could have the chance to orchestrate the biggest re-make of the Supreme Court’s composition in four decades, further raising the stakes of the 2016 election cycle.

With three justices beyond or approaching their 80th birthdays, voters in November will get a chance to make clear in which political direction they prefer the high court to lean for decades to come.

Justice Ruth Bader Ginsburg is 82, and will turn 83 on March 15. Justice Kennedy is 79, but will turn 80 on March 11. And Justice Stephen Breyer is 77. The average American lifespan is currently around 79 years, according to the Centers for Disease Control and Prevention’s National Center for Health Statistics.

“So there’s no question – especially if the next president wins two terms – that the next administration will have a chance to really change the court’s make up,” said Stephen Vladeck of American University’s Washington College of Law.

That means, as Vladeck put it, “simple averages and actuarial tables tell us the court is about to undergo substantial changes.”

Some ‘what-ifs’
Should Kennedy die or decide to retire during the next president’s term, a swing voter who sometimes crosses the ideological divide and votes with liberal justices would no longer serve. If Ginsburg or Breyer leave the court, the liberal bloc would lose reliable votes.

Because the president could end up appointing so many justices, and because he or she would be inclined to choose multiple justices of their ideology for the highest court in the land, the 2016 election cycle could be seismic.

George E. Curry, Editor-in-Chief of George Curry Media; and Todd Ruger and John T. Bennett of CQ-Roll Call (TNS) contributed to this report.

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