Legacy and Leverage: How Scalia’s Sudden Passing is being Handled on Capitol Hill

Image from Wikimedia.org
Image from Wikimedia.org

A first-time guest to the Cibolo Creek Ranch hunting resort in West Texas, U.S. Supreme Court Justice Antonin Scalia was animated and engaged during dinner on the night of February 12, according to the 30,000-acre ranch owner John Poindexter.

“He was seated near me and I had a chance to observe him,” re- called the Houston business owner.
“He was very entertaining. But about 9 p.m. he said, ‘it’s been a long day and a long week, I want to get some sleep.”

After Scalia missed breakfast at 8:30 a.m. the next morning, Poindexter returned three hours later from an outing to find out what was holding up the justice. Scalia lied in bed, lifeless. He was 79.

News of the justice’s passing sent shockwaves throughout the country. Having served on the highest court since 1986 after being nominated by President Ronald Reagan, the conservative wing of the Court had lost its anchor. Even those who did not agree with his politics or interpretation of the law mourned the jurist’s passing.  Despite outspoken disapproval of many of his decisions, even his most ardent critics conceded in private that Scalia was a captivating, brilliant, and witty conversationalist.

“From our years together at the D.C. Circuit, we were best buddies,” associate Justice Ruth Bader Gins- burg released in a statement over the loss of “a treasured friend.”  But it wasn’t long before the political ramifications of the Supreme Court’s loss became the topic of conversation throughout the national newswire and legal circles. On the very night the news broke, the question of what happens next ended up being the first one out of CBS moderator John Dickerson’s mouth during the Re- publican presidential debate in Greenville, South Carolina.

Every White House hopeful onstage agreed: his successor should be determined by the 2016 election winner – not by President Barack Obama.

Indeed, election-year U.S. Supreme Court nominations are rare. The last president to have an opportunity to nominate three justices to the highest court was Reagan. His first two picks – Sandra Day O’Connor and Scalia – were nominated when his party controlled the U.S. Senate, the chamber which constitutionally confirms the president’s nominations with a simple majority vote. They were both unanimously confirmed 99-0 and 98-0, respectively.

Reagan’s third pick in 1987, D.C. Circuit Appellate Justice Robert Bork, came after the Democratic Party had won control of the Senate back in the 1986 mid-term elections. Bork received fierce opposition to his ascension on the Court led by the “Lion of Massachusetts” Sen. Ted Kennedy. After a contentious battle, Reagan later with- drew his nomination of Bork and substituted Justice Anthony Kennedy instead – a moderate swing vote who has demonstrably broken many 4-4 ties both ways since. He was confirmed 97-0 in January of 1988.

Similarly today, President Obama now has the opportunity to nominate three justices to the highest court. His first two picks – Sonia Sotomayor and Elena Kagan – also came at a time when his own party con- trolled the U.S. Senate. They were both confirmed 68-31 and 63-37, respectively.

However, just like with Reagan, the opposition party took control of the U.S. Senate back after the 2014 mid-term elections, and now Obama faces the same possible scrutiny to his potential pick as Reagan did after nominating Bork.

Possible candidates that have come up in media reports include Attorney General Loretta Lynch (the first potential African American female justice), D.C. Circuit Appellate Justice Sri Srinivasan (the first potential Asian American and Indian American justice), and 9th Circuit Appellate Justice Paul Watford, who would be only the third African American male to serve on the highest court.

Meanwhile, the fate of decisions yet to be deter- mined this term now hang up in the air in cases where the Court could rule in a potential 4-4 split.

In high profile cases expected to produce such ties where oral arguments have already been heard – such as Friedrichs v. California Teachers Association challenging the constitutionality of fair share union dues and Fisher v. University. of Texas challenging the constitutionality of affirmative action practices in higher education institutions – Chief Justice John Roberts could decide to hold over those cases until the next term when the Court comes back up to full strength at nine justices.

Or the Court could move ahead with 4-4 split decisions, resulting in the lower court’s decision holding in any given case. For major cases left to be heard this term, that would mean the 5th Circuit Court of Appeals’ decision upholding a Texas law requiring all abortions to be performed in hospital-like surgical facilities would re- main in effect (Whole Woman’s Health v. Hellerstedt), the Tenth Circuit Court of Appeals’ decision upholding contraception coverage under the Affordable Care Act over religious objections would be enforced (Little Sisters of the Poor Home for the Aged v. Burwell), and the Fifth Circuit Court of Appeals’ decision to overturn Obama’s executive order halting the mass deportation of illegal immigrants would stand (United States v. Texas).

Long spans of vacancies on the U.S. Supreme Court aren’t unheard of either. Most recently, between Justice Abe Fortas’ resignation on May 14, 1969 and Jus- tice Harry Blackmun’s swearing-in on June 9, 1970, the Court had gone more than a year with only eight justices on the bench determining cases.

But President Obama has stated he will nominate a third pick to the high court. Senate Majority Leader Mitch McConnell (R-Kentucky) just as quickly declared, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

As that battle plays out on Capitol Hill, all eyes will also be on the Court to see if Chief Justice Roberts decides to go forward with issuing opinions on the most contentious cases or if he elects to wait until the court has its new ninth justice.

By John Giokaris


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