- McConnell says choice should be left to next president
- Democrat Reid argues for Obama to nominate replacement
The death of U.S. Supreme Court Justice Antonin Scalia 11 months before President Barack Obama leaves office, amid an already heated presidential campaign, sets up a titanic test of political wills with risks for both Republicans and Democrats.
Within an hour of the announcement on Saturday that Scalia died while vacationing in Texas, U.S. Senate Majority Leader Mitch McConnell declared that “this vacancy should not be filled until we have a new president.” It was a stance that got the full-throated support from Republican presidential candidates.
Obama said he won’t hesitate. “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,” he said. “These are responsibilities that I take seriously as should everyone. ”
The ferocity of reactions from both sides in the immediate aftermath of Scalia’s death foreshadowed a bitter and bruising political fight over how to replace him directly in the middle of the 2016 White House campaign.
Scalia’s replacement already was a top topic on the campaign trail as the Republican candidates gathered for a debate in South Carolina. They sought to outdo each other in praise of Scalia, a conservative icon, while also rallying behind McConnell. “It’s up to Mitch McConnell and everybody to stop it,” real estate mogul Donald Trump said on the stage. Texas Senator Ted Cruz, meanwhile, charged that “if Donald Trump is president, he will appoint liberals.”
Both parties have tried to convince voters that the stakes in the presidential race are high, in particular because the next president could pick as many as three justices. A Republican president could pick justices who would chip away at abortion rights, Obamacare and Obama’s executive order on immigration. Democrats say they need to tilt the court back from a 5-4 majority that has at times sought to undo Obama’s key initiatives.
Democrats framed the argument in constitutional terms in an effort to portray Republicans as obstructionists.
Harry Reid, the Democratic leader in the Senate, countered with a warning against trying to run out the clock on Obama’s presidency. “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities,” he said.
Democratic presidential candidate Hillary Clinton told a gathering of Democrats at a dinner in Colorado that the fight over the court was a reminder of the importance of the November vote and that “elections have consequences.”
“Barack Obama is President of the United States until Jan. 20, 2017,” she said. “That is a fact my friends whether the Republicans like it or not.”
Republicans may be motivated to hedge their bets depending on who emerges as the nominees from both parties and the political atmosphere. There also is the risk that Democrats win the White House and a majority in the Senate in the November election, resulting in the next justice being much more liberal than any consensus candidate Republicans could negotiate over this year.
More immediately, Scalia’s death greatly reduces the chances of major conservative victories in pending Supreme Court cases involving Obama’s immigration plan, abortion, affirmative action, mandatory union fees and voting rights.
One potential candidate to replace Scalia is Sri Srinivasan, a 48-year-old federal appeals judge in Washington who would be the court’s first justice of Asian ancestry. A potential compromise is Srinivasan’s appeals court colleague, Merrick Garland, 63, whom Obama considered for Supreme Court openings in 2009 and 2010. At the time, Garland had support from prominent Republicans, including Senator Orrin Hatch of Utah.
Norm Ornstein, a congressional scholar at the American Enterprise Institute, said there’s "no way to compel" the Senate to let Obama get a vote on a potential successor. He said there also is no precedent for such a long delay in filling a Supreme Court vacancy.
While Senate Democrats in 2013 triggered the so-called nuclear option -- dropping the thresholds to end filibusters for executive branch nominations and most judicial nominations to a simple majority -- they kept the threshold at 60 votes for Supreme Court picks. That move now could bite them because they will need 14 Republicans to cross party lines to confirm a nominee, which is highly unlikely.
If Obama nominates Srinivasan, who was confirmed 97-0 by the Senate in 2013, and the nominees are Clinton and Trump, Ornstein said, McConnell may decide it’s "better to confirm a relative moderate” than end up with a Democratic president and Senate.
Both sides are bracing for a difficult fight.
"This will be a tough confirmation battle—even assuming that the Obama White House gets a nominee vetted and announced swiftly," said Sarah Binder, a professor at George Washington University. "It’s been 25 years since the Senate was called on to confirm a nominee from a president of the opposing party. And partisan competition and antagonisms were far lower then compared to their heights of today."
Within minutes of the reports of Scalia’s death, conservatives began mobilizing to argue that Obama should not be allowed to appoint a successor.
"It would be wise for everybody to wait until the next president is chosen,” Hatch said Saturday on Fox News. "Seeing the type of judges that the president has appointed, there aren’t many Republicans who are going to differ with Majority Leader McConnell."
"What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?" wrote Conn Carroll, a spokesman for Senator Mike Lee of Utah, a Republican member of the Judiciary Committee.
"The Republicans will certainly use this as an issue to stifle the president and stir up the campaign trail," said Princeton University professor Julian Zelizer. "Nor are they in any mood to compromise on anyone other than a nominee that is politically impossible to oppose."
Zelizer is an expert on President Lyndon B. Johnson, who in 1968 tried to elevate Justice Abe Fortas to chief justice when Earl Warren announced he would resign - only to fail. "The Fortas example is an example of the problems a lame duck president can face with high-stakes confirmation," Zelizer said.
If Republicans try to run out the clock, they would be testing history, said Angus Johnston, a historian and professor at CUNY, noting that the longest period from nomination to resolution was that of Louis Brandeis at 125 days, less than half the time Obama has left as president.