The shocking news that Supreme Court Justice Antonin Scalia died suddenly yesterday put America’s political culture into high partisan gear — almost within minutes of the news. Senate Majority Leader Mitch McConnell and other GOPers immediately made it clear they were not going to allow any nominee by President Barack Obama to go forward. And a the Republican Presidential Debate on CBS, Scalia’s death and who should fill his spot became a top-of-the-list question.
If there is uncertainty about what comes next there is some certainties now: 1) The 2016 Presidential race is instantly transformed as this major issue is injected into it, 2)Partisanship and polarization will increase in coming months as President Barack Obama presents a nominee and the Senate nixes it.
And, yes, the conspiracy theories have begun: a video on You Tube asks whether Obama “murdered” Scalia. In the 21st century facts matter little; partisanship and ideology and assertions matter.
Here’s a roundup of reaction from blogs, news media, and Twitter on Scalia’s death and the implications. These are excerpts. Go to the links to read the articles in full. This will be extensively updated early Sunday morning PST.
President Barack Obama:
The death of Supreme Court Justice Antonin Scalia is a sad and tragic event for his loved ones, including 28 grandchildren and a large network of admirers. The political stakes for the country, its governing institutions, and, yes, the planet dwarf them in scale. The mortality of Supreme Court Justices is an element of wild randomness in the American political system. Enormous stakes rest upon the frail vulnerabilities of human flesh. Thurgood Marshall’s retirement 13 months before the 1992 presidential election, and two years before his death, paved the way for his replacement by Clarence Thomas. In today’s polarized era, no justice who had the physical ability to stay on would depart a Supreme Court seat under an opposing party president. Whether and how the current system can handle these jolts of random chance is an open question.
The immediate and easily foreseeable impact is staggering. Last week, the Supreme Court issued a stay delaying the implementation of Obama’s Clean Power Plan. The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama’s plan, which could jeopardize the Paris climate agreement and leave greenhouse gasses unchecked. Without Scalia on the Court, the odds of this drop to virtually zero. The challenge is set to be decided by a D.C. Circuit panel composed of a majority of Democratic appointees, which will almost certainly uphold the regulations. If the plan is upheld, it would require a majority of the Court to strike it down. With the Court now tied 4-4, such a ruling now seems nearly impossible.
Even if the Senate does not confirm any successor, then, Scalia’s absence alone reshapes the Court. Modern conservative legal doctrine has moved toward a form of aggressive judicial activism, devising — or, more precisely, resurrecting — theories that allow the Court to strike down vast swaths of laws conservatives find objectionable. Activist Courts require a majority. That is now gone.
What happens next — or, what would have happened under the old rules of American politics —is that the president names a successor. Senate Republicans might object to a particular successor on the merits, arguing that an individual candidate is too extreme, or scandal-plagued, or otherwise unqualified. But the old rules no longer apply, because they are not rules at all, they are mere social norms. The consistent pattern in Washington over the last two decades is that any social norms that stand between one of the parties and power inevitably falls by the wayside.
Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas. He was 79.
“He was an extraordinary individual and jurist, admired and treasured by his colleagues,” Chief Justice John G. Roberts Jr. said in a statement confirming Justice Scalia’s death. “His passing is a great loss to the Court and the country he so loyally served.”
The cause of death was not immediately released. A spokeswoman for the U.S. Marshals Service, which sent personnel to the scene, said there was nothing to indicate the death was the result of anything other than natural causes.
Justice Scalia began his service on the court as an outsider known for caustic dissents that alienated even potential allies. But his theories, initially viewed as idiosyncratic, gradually took hold, and not only on the right and not only in the courts.
Justice Scalia was the most prominent advocate of a manner of constitutional interpretation called “originalism,” the idea that judges should look to the meaning of the words of the Constitution at the time they were written.
He mocked the notion of a “living” Constitution, one that evolved with changing times, as simply an excuse for judges to impose their ideological views.
Critics countered that the same could be said for originalism — and that the legal conclusions Justice Scalia said were dictated by that approach meshed neatly with the justice’s views on the death penalty, gay rights and abortion.
It is hard to overstate Justice Scalia’s effect on the modern court. Upon his arrival, staid oral arguments before the justices became jousting matches, with Justice Scalia aggressively questioning counsel with whom he disagreed, challenging his colleagues and often dominating the sessions.
He asked so many questions in his first sitting as a justice that Justice Lewis F. Powell Jr. whispered to Justice Thurgood Marshall: “Do you think he knows the rest of us are here?”
Justice Scalia was just as ready for combat outside the court. He relished debating his critics at law schools and in public appearances, although he sometimes displayed a thin skin.
He tired of questions about his prominent role in the court’s 2000 decision in Bush v. Gore, which ended a recount of the presidential vote in Florida and effectively decided the presidency for Republican George W. Bush. His response to those who raised questions years later: “Get over it.”
Despite his influence on the legal world, Justice Scalia’s views were too far to the right for him to play the pivotal roles on the court that his fellow Reagan nominees — Sandra Day O’Connor and Anthony M. Kennedy — eventually assumed.
Justice Scalia was far better known for fiery dissents than for landmark majority opinions.
Twenty-four hours ago, Republicans were headed into what remains of the current Supreme Court term with a solid majority and a docket strewn with some of the most consequential cases in decades. Affirmative action, abortion, birth control, immigration, an effort to shift congressional power to Republicans — all of these issues are before the justices this term.
The issues remain before the Court, but the balance of power just changed. Justice Antonin Scalia, the longest-serving member of the Court and one of its most outspoken conservatives, is dead. When the sun rose this morning, Republicans enjoyed a 5-4 majority on the nation’s highest Court. It sets on an evenly divided bench.
President Obama will undoubtedly nominate someone to fill the vacant seat on the Supreme Court (pro tip: you should probably get used to hearing the words “Judge Sri Srinivasan” a whole lot in the coming months). The GOP-controlled Senate, meanwhile, is overwhelmingly likely to refuse to confirm anyone Obama nominates.
The most important rule to bear in mind now that the Court is likely to remain evenly divided for the foreseeable future is that, when the Court divides evenly on a case that is pending before it, the lower court’s order stands and the Supreme Court’s consideration of the case has no precedential value. Ordinarily, it is as if the justices never agreed to take up the case in the first place.
…………As a final note, it’s worth nothing that Scalia’s last act as a Supreme Court justice may have been to supply the fifth vote in a series of orders handed down on Tuesday halting President Obama’s most ambitious effort to fight climate change. If the Court remains evenly divided in this case, it could matter a great deal that the two judges assigned to this case in the court below are Democratic appointees. If they vote to uphold the administration’s policies, that order will stand unless there is a fifth justice who votes to reverse that decision.
It’s tempting to look to history to figure out what might happen now. But there aren’t any directly comparable recent episodes.
No president in recent memory has faced a Supreme Court vacancy that opened during his final year in office. Justice Anthony Kennedy, the court’s current swing vote, took office during Ronald Reagan’s final year in office. But Reagan had nominated him the previous November. He was Reagan’s third choice — after Robert Bork, who was rejected by the Senate, and Douglas Ginsburg, who withdrew from consideration. And the vacancy he was filling had opened the previous July.
The most recent broadly similar situation occurred in June of 1968 (an election year), when President Lyndon Baines Johnson, who had said he would not run for re-election, nominated Associate Justice Abe Fortas to take over as chief justice of the Supreme Court. Republicans and conservative southern Democrats filibustered Fortas’ nomination, and Johnson eventually withdrew it.
But there are a few key difference between the Fortas situation and Scalia’s passing.
First, Fortas was already on the court. The nomination was to make him chief justice, not to bring him on, and making him chief justice would not have changed the court’s ideological makeup. (When Johnson nominated Fortas for chief justice, he also nominated Homer Thornberry, a judge and former congressman, to fill Fortas’ seat. But when the Senate rejected Fortas for chief justice, Thornberry’s nomination died, too.)
Second, there were ethical concerns involved. Fortas was criticized for accepting $15,000 for speaking at American University’s law school — money that was provided by corporations. Obama will aim to nominate someone whose ethics are beyond question.
Finally, today’s politics — in which most conservatives are Republicans and most liberals are Democrats — are dramatically different than those of 1968, when both parties were split.
There’s an informal Senate rule that came out of the Fortas fight that Republicans will likely claim applies here. That’s the “Thurmond rule,” named after former Sen. Strom Thurmond (R-S.C.), which, in the words of my colleague Ryan Grim, means “no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency.” Obama has more than six months left in his tenure, but remember, this is an informal rule — it’s not written down anywhere.
The sad passing of Justice Antonin Scalia—who did more than any other member of the judicial branch over the past three decades to exercise judgment instead of will, thereby becoming one of our finest-ever “bulwarks of a limited Constitution”—makes the upcoming presidential election even more important. Ed Whelan writes at National Review Online that it has “been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year” and that “Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution”—and Senate majority leader Mitch McConnell seems to agree. Even assuming that Senate Republicans do their duty in this regard, however, the crucial vacancy will have to be filled soon enough.
A month ago, Bill Kristol wrote that the two issues on which Donald Trump is perhaps the most suspect and the most vulnerable are 1) Obamacare and 2) Supreme Court appointments.
Alas, according to legal scholars I consulted Saturday evening, there is no constitutional imperative requiring the Senate to act according to any timetable. So McConnell can do what he wants. He controls the calendar.
But there are two things he doesn’t control. He doesn’t control public opinion. And he doesn’t control the chess moves Obama can make on the other side of the board. It could prove to be a bad public-relations error for McConnell to have made this Shermanesque statement at this early juncture. Obama will come out and say: Hey, wait a minute here. I am the president. I was elected to a four-year term, not a three-year term. We have a Constitution. It dictates a process. I plan to follow that process.
And presumably, he will. With who? We’ll get to that. But first, here’s another key procedural point to bear in mind. Any Supreme Court nominee needs 60 votes to clear cloture, not just 51. The deal the parties struck on the use of the filibuster a couple of years ago specifically excluded Supreme Court justices, so any nominee will need 60 votes. And that seems like Mission Impossible times 10.
Then the political question becomes, with 46 Democrats (including independents Bernie Sanders and Angus King), is there any remote way to get 14 Republicans to sign on to a justice who might vote to overturn Citizens United, restore the Voting Rights Act, support Roe v. Wade, support public-employee unions in the Friedrichs case, and the many other matters on which the conservative majority has is essence been 5-4 for all these years?
Fourteen is a big number. The election factors into this. There are some Republican senators from purple or blue states who might be hurt in their reelection bids by balls-to-the-wall obstruction. But there aren’t 14. There are four. Rob Portman of Ohio, Kelly Ayotte of New Hampshire, Pat Toomey of Pennsylvania, and Ron Johnson of Wisconsin.
So it’s a big climb. But bear in mind—we are presumably going to see a series of deadlocked 4-4 decisions on a number of contentious issues. Will the American public sit still for that? And bear further in mind—the Court may already have decided some of these cases, because they’ve heard them, and they’ve quite possibly voted on them. What happens after they vote is that they assign an opinion to someone. But they’re decided, so it’s not impossible that Scalia could reach up from the grave and have a part in deciding, by 5-4, to dismantle public-employee unions. How would that sit with the public?
Here’s another weird scenario: a recess appointment. The Senate is going to be on Easter recess from March 21 to April 1. What if Obama put somebody in during those 10 days? There’s precedent—in 1956, another election year, Dwight Eisenhower made a recess appointment out of William Brennan. He stayed on the Court until 1990.
And a final question: How does this reverberate in the presidential election? That’s a whole other column. But it brings the Court to the fore, which is to say that it brings the question of electability to the fore. It makes voters aware of the judicial stakes in November in a very concrete way, and that is something that has only been abstract so far.
That would seem to help Hillary Clinton on Democratic side and Marco Rubio on the Republican side. It would seem to hurt Donald Trump, because given his history, Republicans can’t be sure that he’d even name anti-Roe judges. But it depends on how they play it. This will take skill and nuance on the candidates’ parts, the kind of skill and nuance that we all fairly use as a criterion of their fitness for office.
Hold onto your hats. You think polarization has been bad? It has. But it’s about to zoom into hyperspace.
The Senate Republicans, of course, should not allow the seat to be filled until after the election. Like in 1968. Are today’s Republicans, even in the majority, as brave as the GOP minority of 1968?
While it is still early, and there will be much to discuss about Scalia’s legacy and the next steps forward, it’s obvious that Scalia’s passing leaves a massive hole in the Court. On the practical side, his passing means that the Court will be short a Justice for what is likely to be the remainder of the current term. Given the divided nature of the court on many of the issues that have already been heard by the Justices, and which are scheduled to be heard in the coming months, this leaves open the possibility of several cases in which there is a 4-4 tie, which means that the decision below would stand but it would have no precedential impact. It’s also possible that the Court may decide to delay hearings in some closely fought cases, or set others for reargument, until a time when the Court has a full compliment of Justices again.
More broadly, Scalia’s passing is a significant blow to what has been the ideological balance of the Court for several years now, and that fact alone is likely to be a huge factor in determining what happens with any effort to name a replacement for Justice Scalia. Obviously, anyone that President Obama would select to replace Justice Scalia would be far more liberal than Justice Scalia himself, and that appointment could have a significant impact on many cases in the future. Already, there are calls from Republican Senators to delay any vote on a replacement for Justice Scalia until the next President takes office nearly a year from now. This would constitute an atypically long vacancy for a Supreme Court seat in modern history, but it would not be unprecedented and it would not be all that hard for the Republican-controlled Senate to bring such a result about. In either case, we can expect some huge political battles ahead regarding what could be President Obama’s third Supreme Court appointment, but which may not be acted on at all.
Justice Scalia’s passing is also likely to put the issue of the Supreme Court in the front and center of the Presidential race in a way that it has not been already. As I’ve noted in the past, Justice Scalia was among four Justices above the age of 75 who could have ended up creating a vacancy during just the first term of the next President, the other three being Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Anthony Kennedy. Justice Scalia’s passing not only means that there is a present vacancy, but it will serve to remind everyone that there could be several others in the coming years and that the next President is likely to have a real chance to remake the ideological balance of the Supreme Court for decades to come. We can expect the candidates for President on both sides of the aisle to begin to comment on this issue more openly and more forcefully, and that will likely continue all the way through the General Election, especially if there is a battle over whether any replacement appointment would even get a vote in the Senate before the next President takes office.
The reality now is that the fight over the next SCOTUS nomination will likely become the greatest battle of the final year of the Obama Administration. It will also present an enormous risk for Republicans, which will likely be a useful political advantage for Democrats in the upcoming election year.
Republicans will be sorely tempted to make an unprecedented blockade of any incoming Obama nominees to the Supreme Court until the next president is elected. They will argue that the American people should get to decide the future of the Supreme Court as well as the Presidency. But the refusal to confirm a nominee for nearly a year will also paint Republicans as obstructionists who are unable and unwilling to govern or compromise. Should a nominee fail to be confirmed, it will also serve as a clear reminder and motivator for potentially apathetic moderate and liberal voters to come out to the polls.
On the other hand, Republican legislators have generally found themselves to be more concerned about threats from their right flank than from their left. Any Republican Senator who votes to confirm an Obama nominee will almost certainly be hit with a hard-charging conservative primary battle during their next cycle.
Though unlikely, Republicans may be tempted to dodge all of these outcomes by seeking a compromise choice with President Obama. President Obama, for his part, may be tempted to appoint a compromise justice in exchange for legislative priorities—or he may take a more aggressive approach, figuring that Republicans will renege on any potential deals and knowing that Democrats hold the advantage under the circumstances. I expect that President Obama will take the latter option, but one never knows for certain.
In any case, the theoretical issue of Supreme Court appointees that has been driving much of the Democratic primary debate has suddenly become an intensely practical concern, particularly since little effective legislation is likely to come out of the 2016 cycle.
A CROSS SECTION OF TWEETS:
Scalia's death unifies GOP field – but is the latest example of bowing to base at risk of hurting selves in generalhttps://t.co/D10CrvDghi
— Jonathan Martin (@jmartNYT) February 14, 2016
— The Hill (@thehill) February 14, 2016
How Scalia’s death just threw the Senate, the GOP and the Supreme Court into disarray https://t.co/xkzipQH90j
— TIME.com (@TIME) February 14, 2016
If They Obstruct Scalia’s Replacement, Republicans Risk An Avalanche of Obama Voters in 2016 https://t.co/4GBfzjnuma
— Jeffrey Levin (@jilevin) February 14, 2016
Scalia's death now guarantees a high turnout election. Bad news for Republicans.
— CJ Werleman (@cjwerleman) February 13, 2016
POTUS race now has top focus. Court vacancy becomes political football. Will energize R&D party base, help turnout, reinforce polarization.
— Larry Sabato (@LarrySabato) February 13, 2016
My guess: Obama will nominate a well-credentialed liberal and demand Senate action, which won't come. Clinton/Sanders will seize the issue.
— Larry Sabato (@LarrySabato) February 13, 2016
And there you have it: as I suggested earlier, Obama will nominate, says White House. Prepare for a titanic rhetorical battle thru election.
— Larry Sabato (@LarrySabato) February 14, 2016
— Michael Goldschlager (@MGoldschlager) February 14, 2016
I'd have more respect for the dead if he had more respect for other people when he was alive #Scalia
— radknee (@golpezurdo) February 14, 2016
A man is dead; a father, a husband. Your dislike of his politics does not give you the right to celebrate his family's tragedy. #Scalia
— jam (@jamileh) February 14, 2016
Scalia hasn't been dead for more than a day and everyone is already in their political fight stances. Washington may grind to complete stop
— Chuck Todd (@chucktodd) February 14, 2016
— Julia Gray (@JulesAGray) February 14, 2016
— carold501 (@carold501) February 14, 2016
Photo by Stephen Masker (Supreme Court Justice Antonin Scalia) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons