Associate Supreme Court Justice Antonin Scalia is dead. The Reagan appointee and the Court’s resident sarcastic bulldog passed away in his sleep on February 13. Of the nine judges of the Supreme Court, Scalia was by far the most polarizing.
A bitterly entrenched conservative and strict textualist, Scalia gained Twitter infamy with his scorching dissent in the landmark Obergefell case, which finally cemented marriage equality in all fifty states.
Despite his curmudgeonly public persona, Scalia has already been earnestly remembered as a man who brought diversity and progress to the Court, urging President Obama to appoint Elena Kagan to become the Court’s fourth ever-female justice. Unfortunately for the man’s memory, his death has incredible implications, and like anything else in this election cycle it was politicized almost instantaneously.
Ted Cruz, resident Texas blowhard and a fixture on the Senate Judiciary Committee, had barely waited for Scalia’s body to turn cold before declaring that any potential Justice nominated by President Obama would not even be considered. Cruz later pledged to filibuster the confirmation hearing.
Other Republicans wasted no time in piling on. Senate Majority Leader, Mitch McConnel, who has apparently never given Article II of the Constitution even a cursory glance, declared that the President had no authority to fill this seat in an election year and that the decision should be in the hands of the people.
Article II clearly states that the President shall appoint judges to the Supreme Court. There is no caveat for election years or lame duck periods. There is no Supreme Court decision, using any method of Constitutional interpretation that deals with the issue.
Last time I checked, Barack Obama is the sitting President of the United States of America. He has a Constitutional obligation to fill Scalia’s seat on the bench and provide the American people with a functioning judiciary.
The Republicans that didn’t go as far as to call an election year appointment unconstitutional stopped at calling it unprecedented. That is also not correct.
Despite Ted Cruz’s claim that an election year appointment to the Supreme Court hasn’t occurred in eighty years, it has happened seven times since 1900. Six of those were confirmed, the most recent being Justice Anthony Kennedy who was nominated in Reagan’s final months in office and confirmed by a Democratically controlled Senate.
What is unprecedented is keeping the Court without a ninth Justice for more than three hundred days. Of the current Court, the longest period of vacancy from the time a seat was vacated to the time of confirmation is 88 days. The longest vacancy in history came when it took the Senate 125 days to confirm Justice Louis Brandeis.
The Republicans now have a choice to make. If they are supremely confident that the GOP will secure the White House in November, than blocking a nomination makes some degree of sense on paper. But what if they don’t? They now have to decide if they would rather roll the dice on potentially getting a Hillary Clinton nominee coupled with immense public pressure to fill the Court, or simply confirm an Obama nominee. This provides both parties with leverage.
President Obama’s people have to know that any social activist he may want to appoint will almost certainly be blocked. The Republican’s know that they will be lambasted by the media and suffer a public perception hit if they obstruct the appointment process for more than a few months. It is in both parties best interest to break the stalemate.
Early word is that President Obama’s most likely nominee will be Sri Srinivasan, a 48-year-old judge currently sitting on the DC Court of Appeals. Srinivasan was appointed to that court by President Obama and unanimously confirmed by the Senate in 2013. Since that time he has always been considered Obama’s first choice for the Supreme Court.
Judge Srinivasan is a well-documented political moderate and an incredibly respected jurist. He was born in India and attended Stanford for both his undergrad and law school, where he graduated with high honors. He held the distinction of being the first Hindu Supreme Court Justice (he is not a Muslim, despite what you see on Facebook, neither is the President or any of his cabinet or advisors for that matter) and that would provide the President with one last progressive feather in his cap.
If Judge Srinivasan is indeed tapped by the President the ball will be in the court of the Republicans to decide once again whether they want to allow ideology to trump practicality and responsibility, or do the pragmatic thing and push through the confirmation of a moderate nominee.
Cody Johnson is a political science major at Tarleton State University in Stephenville, TX and is also a staff writer for Texan News Service.