First reactions on the passing of Justice Scalia (UPDATED)
on Feb 13, 2016 at 5:42 pm
The first and most important reaction is to extend our sympathies to Justice Scalia’s wife, Maureen, and his entire family, including his nine children and numerous grandchildren. The Justice is a historic figure, surely one of the most influential legal minds – on and off the Court – of the last century. His contributions to the law are incalculable. They substantially reframed discussions of constitutional, statutory, and administrative law.
The most immediate implications involve the presidential election. President Obama of course has the power to nominate a successor, with the consent of the Senate. In the ordinary course, because the opening was unexpected, the nomination would not be forthcoming for a couple of months and then the confirmation process would take several more months.
Theoretically, that process could conclude before the November election. But realistically, it cannot absent essentially a consensus nominee – and probably not even then, given the stakes. A Democratic president would replace a leading conservative vote on a closely divided Court. The Republican Senate will not permit such a consequential nomination – which would radically shift the balance of ideological power on the Court – to go forward.
There is the related question of the Court becoming an issue in the election. Before today, it was unlikely that many voters would choose a presidential candidate for this reason, given the importance of issues like the economy, terrorism, and immigration. But the fact that there is an immediate vacancy – and a vacancy that could tip the Court’s ideological balance – makes the future of the Court much more concrete.
In the political primaries, the Court is not an issue that divides candidates of the same party. Both Hillary Clinton and Bernie Sanders, for example, are clear that they would want to appoint a more liberal successor that would oppose decisions like the Citizens United campaign finance ruling. The leading Republican candidates would all make clear their support for a nominee who would oppose the Court’s rulings upholding the Affordable Care Act.
In the general election, the Court is also an issue that tends to drive the base of each party, so it may be most relevant to turn-out rather than to changing voters’ minds. In general terms, conservatives have been more focused than progressives on the Court as a presidential legacy. But both parties have groups of voters – on the left, supporting abortion rights, and on the right, supporting gun rights and opposing abortion, for example – for which the Court has outsized importance.
Because there remains almost a year in his Term, President Obama is likely to feel an obligation to put forward a nominee rather than completely accede to Republican objections to confirming anyone. That may also be good presidential politics, as Democrats seek to paint Republicans as obstructionists. Three potential nominees are easy to identify from among current appellate judges: from the D.C. Circuit, Patricia Millett and Sri Srinivasan; and from the Ninth Circuit, Paul Watford.