President Obama has a constitutional duty to nominate a new Supreme Court justice following the death last week of Justice Antonin Scalia, but whether the U.S. Senate will confirm or even act on the nomination is an open question, legal and government scholars at Dartmouth agree.
“The Constitution simply says the president ‘shall nominate, and by and with the advice and consent of the Senate, appoint judges to the Supreme Court,’ ” says Brendan Nyhan, an assistant professor of government.
“But President Obama will face significant Republican resistance to any nominee who is acceptable to his own party, which may prevent a replacement from being confirmed before he leaves office,” Nyhan says.
Sen. Mitch McConnell, the Senate majority leader, and all of the Republican presidential candidates have already called on the president to let the winner of the November election nominate Scalia’s replacement, with GOP candidate Sen. Ted Cruz announcing Tuesday he will filibuster any Obama nominee.
“There is nothing about the last year of the president’s term that changes anything. This argument that Obama can’t or shouldn’t appoint a replacement for Scalia carries no weight. That’s just political bluster,” says Professor Dean Lacy, chair of the government department and director of the program in politics and law.
“I think Obama will make the case that he needs to get someone on the court immediately, he will nominate someone, and then press the Senate to confirm,” Lacy says. “From there we’ll see what happens.”
To understand the intensity of the political maneuvering following the sudden death of Scalia on Feb. 13, it is important to consider that he was a key figure within the court’s conservative block, says Sonu Bedi, an associate professor of government who teaches constitutional law.
Scalia’s theory that judges must try to determine what the drafters of the Constitution meant at the time, and his voluminous, forceful writings, often in dissent of liberal opinions, “make Scalia a paragon of conservative, originalist thought. His replacement could totally change the balance of the court,” Bedi says.
“Scalia was probably the glue that held together the five who often voted on the right,” says Lacy. “Justices Roberts and Alito will have to fill those shoes, but obviously they need another vote and they need someone with the ability with words that Scalia had.”
Once Obama puts forward a nominee for the court, the Senate will face some difficult decisions, says Bedi. “They can vote the person down, that’s fine, but for them to hold off until after the November election could be tricky. A good number of them are up for re-election. I don’t think they necessarily want that pressure.”
The longest confirmation battle in court history was in 1916, over President Woodrow Wilson’s nominee, Louis Brandeis, whose public campaigns against monopolies, and for labor protections, sparked a bitter, four-month fight led by Senate Republicans.
“It took 125 days to confirm Brandeis. Obama has 341 days. It is going to be difficult for the Senate to hold out that long,” Bedi says.
But presidential election politics are another wild card in the process.
“This is complex strategic calculus,” says Bedi. “The nominee can be a great motivator to get out the vote, but that holds true for both parties.”
Lacy says he sees greater risks for the Republicans. “This is an election season in which the public is showing rising anger about the way things don’t get done in Washington, and the Republicans in the Senate could become the focal point for that anger over gridlock,” Lacy says.
In the meantime the Supreme Court continues its work, with oral arguments scheduled to resume Monday on a busy docket. Some of the cases now under consideration by the court include the right of Texas to restrict access to abortion clinics on public health grounds, the constitutionality of Obama’s executive actions limiting deportation of some illegal immigrants, and a challenge to affirmative action admissions policies at the University of Texas at Austin.
“The court can function with eight justices—a 4-4 deadlock would simply leave the existing lower court ruling in place,” says Nyhan.
But if the Senate blocks consideration of a nominee until the next president is in office, and the justices deadlock often enough, many high profile cases could remain unsettled for at least a full year, says Lacy, which could increase pressure on the Senate to act.
“Any nominee by Obama will be criticized. Obama will have to consider naming someone who is moderate and has a record that is beyond reproach so that any opposition looks political rather than substantial,” says Lacy.
“This will be played out in the court of public opinion. If it looks like public opinion is turning against the Senate’s delay tactics, you’re liable to see the Republicans vote on whoever Obama nominates. If they are winning the public opinion battle, they can keep delaying until the next president takes office,” he says.
Bedi says he personally benefits under all the possible scenarios.
“Whatever the outcome, it will be good pedagogically when I teach constitutional law in the fall. I have a lot of material already,” he says.