Musical Chairs: Replacing Justice Scalia

ANDREW PIPER—On February 13th, 2016, Justice Scalia passed away at a resort in Shafter, Texas. Justice Scalia was known for his sarcastic dissents and his contempt for the use of legislative history in statutory interpretation. Moreover, Justice Scalia was a profound supporter of bright-line legal rules as opposed to legal balancing tests and was extremely disparaging of majority Supreme Court opinions that did not provide lower courts with clear guidance.

With the untimely passing of Justice Scalia the question persists: Who will replace him? Of course, President Barak Obama is entitled to nominate an individual for the vacancy as stated in the Constitution. Such nomination by a president in his final year in office is not unprecedented, discordant, nor uncommon. However, with such a divided Court, the empty seat creates a situation analogous to a competitive final round of “musical chairs,” with Republicans and Democrats nudging one another for the last chair.

On the Republican side of the debate, many—like United States Senate Majority Leader Mitch McConnell—argue that Barak Obama should withhold his nomination in order to allow Americans to have “a voice in the selection of their next Supreme Court justice.” That is, with the upcoming Presidential election, voters could choose a Presidential candidate who would nominate a justice of their preference. However, there is a lack of constitutional justification for such argument. That being said, Democrats—such as Hillary Clinton—also lack constitutional grounds for their arguments that refusing to confirm an Obama nominee is to “put politics over the Constitution.” The Senate majority has the constitutional right to defeat presidential nominations.

Ineffectually, the prospect of gridlock seems like the most likely scenario as evidenced by Senator McConnell: “If the shoe were on the other foot, do any of you think the Democrat majority in the Senate would be confirming a Republican president’s nomination in the last year of his term? Of course not. This is going to be decided by the American people, and the next president, whoever that may be, will fill this vacancy.” Nonetheless, the United States can survive such a stalemate: first, the United States can endure a year without a ninth Court justice; second, the United States can even persevere through an extended vacancy, in the event of a newly elected Democratic president and Republican dominated Senate.

It is worth noting that the possibility of a gridlock is just that, a possibility. Meaning, there is also the possibility of a compromise. Republican senators up for reelection in more liberal states may find it in their interest to compromise in an effort to win their respective general elections. On the other hand, this argument loses muster when one looks to the unprecedented Senate blockades of President Obama’s nominations to the United States Circuit Court seats, which have had essentially no practical effect on elections. Nevertheless, because the Republican led Senate is blocking a Supreme Court nomination, the media attention has been, and will continue to be, exponentially more widespread.

The possibility of compromise exists on the presidential side as well. For instance, Obama could compromise by nominating a more moderate justice or an older nominee who would not occupy the Court for several decades. The possibility of compromise becomes more promising if we see the Democratic candidate outperforming the Republican candidate during the presidential campaign. Accordingly, Republicans in the Senate would likely be more willing to confirm an older nominee at the risk of a future Democratic Senate confirming a young, staunch liberal justice who would hold the bench for decades to come.

However, in the likely event that the next president is of the same party that controls the Senate, whether the Republicans remain in control or the Democrats usurp control, the possibility of gridlock is not eliminated—the minority party in the Senate can filibuster Court nominations. Therefore, a rapid restoration to a full Court would necessitate an elimination of filibustering presidential nominations to the Court.

On the shortlist of potential nominations by President Obama lie federal appellate judges Merrick Garland and Sri Srinivasan. Srinivasan, age 49, served on the US Court of Appeals after a 97–0 bipartisan vote in the US Senate confirmed his nomination in May 2013. Moreover, in his role as a senior Justice Department lawyer, he was successful in convincing the Court to strike down the Defense of Marriage Act, which prevented homosexual couples from obtaining federal perks, such as tax benefits. Garland, age 63, was appointed to the US Court of Appeals for the D.C. Circuit in 1997 and began serving as the chief judge in 2013.

The timing of the impending nomination creates an intriguing sense of urgency and a desire for certainty. Yet, all we can do is sit back and watch who plops into that last chair when the music stops!

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