When Antonin Scalia was nominated to the Supreme Court by Ronald Reagan in 1986, his Senate confirmation was as placid as a church social. Democrats were too occupied with the simultaneous nomination of Justice William Rehnquist to be chief justice
When Antonin Scalia was nominated to the Supreme Court by Ronald Reagan in 1986, his Senate confirmation was as placid as a church social. Democrats were too occupied with the simultaneous nomination of Justice William Rehnquist to be chief justice to pay much attention to the other guy. The Judiciary Committee hearings on Scalia were largely pro forma, and the Senate approved him by a vote of 98-0 — while 33 members voted against Rehnquist.
The selection of a replacement for Scalia, who became the most powerful and durable conservative voice the modern Supreme Court has ever had, will be nothing like his 1986 experience. His unexpected death Saturday set the stage for the most incendiary, high-stakes confirmation battle since Robert Bork (also chosen by Reagan) went down in flames in 1987.
There are a few reasons why this time is different. First, Scalia was a passionate and formidable advocate for a jurisprudence that stressed the importance of leaving most issues to elected leaders rather than judges. His forceful championing of Second Amendment rights and property rights, along with his fiery denunciations of the court’s rulings in favor of abortion rights, racial preferences and same-sex marriage, made him as beloved on the right as he was loathed on the left. When someone so influential leaves the scene, both sides rush to fill the vacuum.
The split between four Democratic-appointed liberal justices and four Republican-appointed conservatives lends unusual importance to the appointment of the ninth member of the court. Obama could tilt the balance to the liberal side, with major consequences on a host of issues. But that won’t happen if the Republican-controlled Senate can prevent it, which it probably can.
With just 11 months left in Obama’s tenure, the Republican Party’s legislators and candidates appear united in favor of putting off any replacement until after Jan. 20, 2017. They envision a Republican president choosing a justice in the image of Scalia who would be easily confirmed by a Republican Senate.
Majority Leader Mitch McConnell said flatly that “this vacancy should not be filled until we have a new president,” suggesting he will block any confirmation vote. Republicans could also agree to a vote only to hand Obama a humiliating defeat. In Saturday’s GOP presidential debate, the candidates agreed Obama should not be allowed a third Supreme Court appointment.
That strategy could be a bad bet. If compromise were an option, Obama might be persuaded to settle for a centrist candidate to peel off a few Republican senators. If Hillary Clinton or Bernie Sanders were elected, either would feel emboldened to make a more liberal choice — and might have the backing of a new Democratic majority in the Senate. The Republicans have to defend 24 seats in the November election, compared to 10 seats for the Democrats.
A nomination by Obama might not come to a vote, but it will force senators to take a public position on the nominee. Those are risks both parties appear ready to take.
The president will send a name to the Senate, demanding that senators fulfill their constitutional duty to provide “advice and consent” on such appointments. Republicans will portray his effort as an arrogant break with historical custom, which they say rules out Supreme Court appointments in a president’s final year.
And then we will have a rare referendum on the high court snuggled into an election for president.
It’s often been said that the court follows the election returns. This year, it will shape them.
