Skip to main content

The Globe and Mail

Antonin Scalia’s death sets the stage for year-long partisan gridlock

The battle over replacing Justice Antonin Scalia promises to be one of the most bitter and consequential political clashes in recent U.S. history, reshaping both the race for the presidency and the future of the Supreme Court.

The sudden death of Justice Scalia on Saturday at the age of 79 presents President Barack Obama with an unexpected vacancy on the nation’s highest court just as the campaign to elect the next president intensifies.

An epic conflict appears inevitable: Mr. Obama promised to nominate a replacement for Justice Scalia, the linchpin of the court’s conservative wing, and urged the U.S. Senate to fulfill its responsibility to evaluate the nominee and hold a vote.

But the U.S. Senate is controlled by Republicans, who have vowed to thwart Mr. Obama. On Saturday, Senator Mitch McConnell of Kentucky, the Republican majority leader, stated that “this vacancy should not be filled until we have a new president.”

In this Oct. 18, 2011 file photo, U.S. Supreme Court justice Antonin Scalia looks into the balcony before addressing the Chicago-Kent College Law justice in Chicago. (Charles Rex Arbogast / The Associated Press)

For both sides of the partisan divide, the stakes are huge. Mr. Obama has an unanticipated chance to solidify his legacy and tilt the balance on the Supreme Court away from the conservative jurisprudence that has prevailed in recent decades.

Much of U.S. constitutional law “essentially turns on the new justice,” said Michael Klarman, a law professor at Harvard University. With Justice Scalia, the court tended to rule 5-4 in favour of the conservative position on the most divisive cases. If a liberal justice is confirmed, the majority would break the other way on critical issues such as race-based affirmative action, campaign finance reform, the separation of church and state and some questions involving abortion, Prof. Klarman said.

Appointing a successor to Justice Scalia also gives Mr. Obama an opportunity to influence the presidential race. He could nominate a strongly liberal justice, knowing that the likelihood of a Republican-controlled Senate confirming such a person is slim, on the theory that a rejection would fire up Democratic voters in November. Or he could nominate a centrist candidate, hoping to divide Republicans, both in the Senate and on the campaign trail.

The game of chess is no less complicated for Republicans. They are alarmed by the prospect of a Supreme Court with a majority of liberal-leaning justices and intend to block Mr. Obama’s nominee. But such a strategy means they risk being viewed as knee-jerk obstructionists, particularly if Mr. Obama nominates a moderate.

Flowers are seen in front of the Supreme Court building in Washington D.C. after the death of U.S. Supreme Court Justice Antonin Scalia on Feb. 14, 2016. (Carlos Barria / Reuters)

There is also the question of precedent. No confirmation process for a Supreme Court justice has ever taken more than three months or so, which should give Mr. Obama plenty of time to nominate and confirm a new justice before the election – or even before the two parties hold their respective conventions in July.

Adam Winkler, a professor of constitutional law at the University of California Los Angeles, noted that senators have confirmed a Supreme Court justice in an election year 19 times in American history. The last time was in February, 1988, when then-Republican President Ronald Reagan nominated Anthony Kennedy, who still sits on the court. The Senate, controlled by Democrats, confirmed him unanimously.

In today’s hyper-partisan environment, no one can imagine that kind of outcome. Prof. Winkler added that Senate Republicans control the legislative body’s agenda, so they have numerous options to delay the confirmation process. They include mounting a filibuster, which prevents a vote from taking place unless a super-majority of 60 senators allows it to proceed.

“The Senate should vote Obama’s nominee up or down,” said Prof. Winkler. “There’s nothing obliging them to vote for the president’s nominee.”

Meanwhile, Justice Scalia’s death has immediate consequences for several important cases involving the Supreme Court. Last week, the court temporarily blocked implementation of Mr. Obama’s regulations limiting emissions from coal-fired power plants, which are critical to global efforts to fight climate change. In the near future, the case is expected to return to the court – where conservatives will no longer have a five-justice majority.

In this June 7, 2006 file photo, Supreme Court Justice Antonin Scalia listens to President Bush speak during a swearing-in ceremony on the South Lawn at the White House in Washington. (Ron Edmonds / The Associated Press)

Last month, the court heard arguments in a case challenging the right of public-sector unions to collect certain kinds of dues from all employees. Observers widely expected a 5-4 ruling against the unions, but they now expect the justices to be divided 4-4 in Justice Scalia’s absence. Such evenly split decisions leave the lower court’s ruling intact and fail to overturn prior legal precedent.

As Democrats and Republicans prepare for a fierce confrontation over the next Supreme Court justice, legal analysts have begun handicapping the list of potential nominees. One name that is near the top of all lists is Sri Srinivasan, a 48-year-old Indian-American who currently serves on the federal appeals court in Washington. Such appointments also require approval by the Senate – and it voted 97-0 in favour of Judge Srinivasan’s appointment in 2012.

Judge Srinivasan has served in both Democratic and Republican administrations and has an impeccable reputation as a jurist, making him a difficult nominee for Republican senators to reject. “If you prevent the first Asian-American from becoming a Supreme Court justice when he has incredible credentials and everyone thinks he’s qualified, you’re going to pay a price for that,” said Prof. Klarman.

Story continues below advertisement

Report an error Licensing Options

The Globe invites you to share your views. Please stay on topic and be respectful to everyone. For more information on our commenting policies and how our community-based moderation works, please read our Community Guidelines and our Terms and Conditions.

We’ve made some technical updates to our commenting software. If you are experiencing any issues posting comments, simply log out and log back in.

Discussion loading… ✨