Who Will Choose Antonin Scalia's Replacement? Republicans Want To Block Obama's Nominee
Supreme Court Justice Antonin Scalia was found dead of natural causes on a resort in Texas on Saturday, according to CNN. He reportedly died in his sleep and there was no evidence of foul play. Now, just hours after his death, a political storm has already started over just who will replace Scalia, but, more important, who will choose Scalia's replacement. Already, Republicans in the conservative-dominated Congress have said they would block President Barack Obama from doing his job of nominating another justice to replace Scalia. There is no precedent set for what happens when the Senate doesn't allow a sitting presdient to nominate a justice.
Update: Obama announced Saturday that he would nominate a replacement for Scalia despite Republican calls that the next sitting president should do it, according to the New York Times.
Texas Sen. Ted Cruz put out a call on Twitter saying "we owe it to" Scalia to not allow Obama to choose the next justice, according to Vox. In his tweet, Cruz said that the next sitting president should nominate a candidate. Cruz is advocating for this idea for two reasons: first, he doesn't want Obama to choose another left-leaning justice (there are currently three decidedly liberal justices and two that have become slightly more liberal over time). And, second, Cruz believes that the next sitting president could actually be a Republican candidate, who would nominate a conservative justice. Senate Majority Leader Mitch McConnell also said Saturday that the next president should appoint a replacement for Scalia, according to the New York Times.
1) the irony of a Republicans honoring a constitutional originalist by requesting that Obama give up his constitutional prerogative...— Derek Thompson (@DKThomp) February 13, 2016
2) it really doesn’t matter, since this senate wouldn’t confirm if obama nominated the ghost of rehnquist— Derek Thompson (@DKThomp) February 13, 2016
But there's one problem with Cruz's idea: it hasn't ever actually happened. Yes, the Senate has blocked the confirmation of a president's nominee, but that's only happened about 20 times. Further, it would be a serious question of whether it's constitutional for the Senate blocked all of Obama's nominees, because it would effectively be taking away his power to nominate people to the Supreme Court. Obama has 361 days left in office, and the longest confirmation of a Supreme Court justice was 125 days, according to Think Progress.
There is a lot of precedent for sitting presidents nominating new justices to the Court during an election cycle, too. A writer for NBC Sports tweeted that a number of prominent justices have been confirmed in election years:
Justices confirmed in an election year: Kennedy, Rehnquist, Powell, Brennan, Murphy, Cardozo, Clarke, Brandeis, Pitney, Peckham, many others— Craig Calcaterra (@craigcalcaterra) February 13, 2016
Further, many people have pointed out that Cruz and other Republicans who also have law experience should know that they can't stop the Executive Branch from accessing one of its constitutional powers:
Sen Cruz cannot tell the Executive Branch not to nominate. Cruz was aa clerk for Rehnquist so he should know that. https://t.co/n3xTtDRjt8— MA_NYC (@ma_nyc7) February 13, 2016
But, the Times reported that there is something called the Thurmond Rule, which is an unwritten rule that says "a judicial nominee should not be confirmed in the months leading up to an election." But, as recently as 2015, Vermont Sen. Patrick Leahy said the rule was invalid. Additionally, the Times reported that, because the rule is unwritten, there's no way to enforce it or say when exactly a confirmation is too close to an election.
As Derek Thompson from The Atlantic pointed out in tweets above, Obama might only hope to get a nominee past the Senate if he chooses someone who does not share his liberal ideologies. If Obama chooses a conservative justice, then he might be able to get that person past the Senate. But it wouldn't really serve the Democratic Party or Obama's interest to choose someone too conservative. Thus the gridlock. NBC chief legal analyst Pete Williams told MSNBC that he would be "very surprised" if a replacement for Scalia was confirmed before the Court starts its next term in October, and that's not good news for the Court.