The Scalia Vacancy

I have this oped in the Chicago Trib, explaining that Scalia himself would have wanted Obama to name a successor. 

Move forward on filling Scalia's Supreme Court seat

Steven Lubet

President Barack Obama intends to fulfill his constitutional role by nominating a successor to the late Supreme Court Justice Antonin Scalia. Republicans in the Senate, however, have already declared that they intend to stop him. Majority Leader Mitch McConnell announced that the "vacancy should not be filled until we have a new president." The Republican presidential candidates quickly agreed. Donald Trump's call for "delay, delay, delay" was staunchly echoed by the other five participants in Saturday night's GOP debate. Sen. Chuck Grassley, who chairs the Judiciary Committee, has likewise stated — incorrectly, as it turns out — that "it's been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year."

It seems not to trouble Republicans at all to leave the Supreme Court short-handed for the rest of this term, which ends in June, and perhaps for much longer. With dozens of cases yet to decide before the summer recess, the court faces the very real prospect of 4-4 ties on issues of vital importance, involving public-sector unions, immigration, abortion rights and voting rights, to name just a few.

And the problems won't end with the recess. Matters often come to the court for emergency rulings during the summer, and it takes five votes to issue a stay of proceedings — and that can include executions, which might actually be allowed to proceed on 4-4 votes. The court's next term begins in October, and a short-handed court would continue to cause the same sort of problems until a new justice is seated. Given the demands on any new president, that process could easily stretch through the spring of 2017.

Republicans are under no obligation to confirm an Obama nominee, but it would be a derogation of constitutional authority for the Senate to refuse even to consider a presidential nomination. "Delay, delay, delay," simply for the sake of it, would do substantial damage to the Supreme Court and the administration of justice.

But don't take my word for it. Instead, consider this statement from an impeccable authority on the inner workings of the Supreme Court, who believed it was wrong to risk even a single 4-4 decision, let alone several months worth. It is unacceptable, he said, for the court to proceed unnecessarily "with eight justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case." Even one such instance, he continued, "impairs the functioning of the court."

The writer, as you may have guessed, was none other than Justice Scalia, explaining why he did not disqualify himself in the infamous 2004 duck hunting case, Cheney v. District Court, although he recognized that recusal might have been apt in an abundance of caution. No matter the public outcry, it was more important for the court to proceed with the participation of nine justices in every possible case. (The second half of the above quote was taken by Scalia from an earlier statement explaining the justices' recusal policy.)

Scalia's principle goes well beyond recusal in a single case. If the court's effectiveness depends upon the full complement of justices in one case, then the requirement is multiplied many times over when applied to the dozens of cases yet to be decided just during this term.

No one expects the Senate to confirm an unqualified nominee to the Supreme Court, but it would be an abdication of constitutional authority — and a blow to the administration of justice — to refuse even to consider a presidential appointment for the sake of politics. The Senate, then controlled by Democrats, confirmed Justice Anthony Kennedy in 1988, which was the last year of the Reagan presidency, rather than wait for the results of the November election. The situation this year demands no less.

Note to Senate Republicans: The best way to honor Justice Scalia's memory and legacy would be to respect the needs of the Supreme Court, to which he devoted so much of his extraordinary life.

Steven Lubet is a law professor at the Northwestern University Pritzker School of Law.

Comments

[Captain Hruska Carswell, Continuance King]

If the hard lined Senate extremists balk at filling his seat, they will be perceived and cast as just another Ted Cruz. Somebody who shut down the government as an antic. Ted Cruz was the guy who delayed my tax refund by four weeks. That hurt my family. Very similar parallels here.

[anon]

"Note to Senate Republicans: The best way to honor Justice Scalia's memory and legacy would be to respect the needs of the Supreme Court, to which he devoted so much of his extraordinary life."

But see Antonin Scalia: "I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years. Sure. But I shouldn’t have to tell you that, unless you think I’m a fool." http://patterico.com/2016/02/14/justice-scalia-talks-about-his-possible-replacement/

[anon]

But see Antonin Scalia, 2012, when asked if he would like to be replaced by a Republican nominee: "I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years. Sure. But I shouldn’t have to tell you that, unless you think I’m a fool."

[anon]

It is so laughable to see the partisans getting all worked up: one might say, the "Borkians." Or, perhaps we should remember Justice Ginsburg. Remember?

The post above, as usual, is riddled with nonsense. Let's fact check a bit:

1. (Republicans) incorrectly [claim], as it turns out — that "it's been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year."

The example provided is a nomination in one year, confirmed in the next. It took three months to confirm Kennedy, and that was after the exhaustion of the Democrats, having voted down the previous two nominees, including Douglas Ginsburg, who was forced by the high minded partisan Democrats (pun intended) to withdraw his name from consideration after admitting to marijuana use!

2. "It seems not to trouble Republicans at all to leave the Supreme Court short-handed for the rest of this term, which ends in June"

If we use Kennedy as a guide, we could expect three months from nomination to confirmation (and that was, again, as a result of the obstruction exhaustion of the Democrats). So, from now, we could, at best, expect a confirmation by the end of May. And, then, in the remaining few weeks does Lubet expect the new appointee to rule on all the pending cases? What a loon.

3. "Republicans are under no obligation to confirm an Obama nominee, but it would be a derogation of constitutional authority for the Senate to refuse even to consider a presidential nomination."

In his hatred of Republicans, Lubet can't bear to actually think. The Constitution requires "advice and consent." Does Lubet know what that means better than the rest of the world? Where does it say that "advice" can't be to await the results of the next election, when, as demonstrated above, a new appointee would have little ability to participate this term in any event and a new president will be accountable, in a bid for reelection to the voters? That "advice" may not be to the Democrat's liking, but the Constitution does NOT state that the Senate must act on a nomination within a certain time, or must consent to a nomination.

The best compromise, IMHO, would be this.

President nominates.

Senate Judiciary Committee vets the nominee.

The vote is scheduled for November, after the election.

The vote then proceeds.

If the election results in a Republican majority in the Senate and a Republican President elect, then the vote will be likely against confirmation.

IF the election is otherwise, then many Republicans may cross the aisle and vote for the President's nominee, for a number of reasons, provided the nominee is at least close to a choice that will not deliberately test the vote.

[Captain Hruska Carswell, Continuance King]

Senate Hardliners forget history. President GHW Bush nominated Clarence Thomas in July 1991, near the end of his term just when the Primary was heating up. Remember also that Justice Thomas succeeded Justice Marshall, polar opposites philosophically. What was good for President Bush and folks who tend to lean Right should also apply to President Obama and folks who tend to lean left.