Jiggery Pokery: What the Constitution Says about Selecting Justice Scalia’s Replacement, and What Republicans and Democrats Should be Saying Instead

Kevin Nathaniel Troy Fowler[1]

The sudden passing of Supreme Court Justice Antonin Scalia has drawn fiery reactions from both his supporters as well as his detractors. The polarizing effect the late Supreme Court Justice had along political lines is highlighted by the slew of varying ways his legacy has been portrayed on the heels of his death. He’s been called “a giant of jurisprudence”[2] and one of the most “formidable thinkers amongst the 112 justices who have served on the court,”[3] but also a “monster”[4] to whom the “do-not-speak-ill-of-the-dead” rule should not apply.[5]

The time for reflection on Justice Scalia’s remarkable legal career has been swiftly cane-hooked behind the curtain, however, and the discussion of who would replace him has taken center stage. The question took an enthralling, unexpected turn almost immediately: within hours of the news of Justice Scalia’s death, Senate majority leader Mitch McConnell stated that “the American people should have a voice” in filling Justice Scalia’s vacancy, taking the bold position that President Barack Obama should not nominate a new Justice, instead deferring that power to whoever wins the next presidential election.[6] The aggressive line in the sand drawn by Senator McConnell was quickly criticized by leading Democrats standing on the other side of it. As is often the case in highly politicized issues, both Republicans and Democrats believe the Constitution is firmly and squarely on their respective sides. But what does the Supreme Law of the Land actually say about the matter? And how has it been interpreted and implemented up to this point? The answer won’t entirely satisfy Democrats or Republicans.

Democrats have contended that an outright refusal by the Senate to vote (let alone confirm) any nominee that President Obama could pick amounts to a violation of his “basic constitutional right” to select a replacement.[7] This is not entirely accurate. Article II, Section 2 of the Constitution provides only that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.” While President Obama certainly has the right to choose a nominee, there is no constitutional provision within the text mandating a Senate vote on any nominee that the President selects. In fact, some scholars suggest that the Framers specially intended for the Senate to decide for itself whether or not to vote for a nominee, evidenced by their “rejection of an alternative approach to appointments” in which “nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.”[8]

The Grand Old Party’s position doesn’t quite carry the day either. Republicans have intimated that there is a developed precedent regarding Article II, Section 2 against the President nominating a Supreme Court Justice during an election year. The facts bear out a different story, as “the historical record does not reveal any instances since at least 1900 of the President failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.”[9] In other words, as Senator Elizabeth Warren puts it, Article II, Section 2 contains no provision that qualifies the President’s ability to select a Supreme Court nominee “except when there’s a year left in [his] term.”[10]

There are many policy and pragmatic considerations that Republicans and Democrats alike could highlight, without crudely pigeon-holing their arguments behind constitutional provisions and accompanying precedent.  For instance, Democrats could argue that the constitutional mechanism for filling Supreme Court vacancies, to some extent, relies on good faith effort between both the President and the Senate. If the two dominant political parties always dug their heels in and refused to confirm any nominee that came from the other side of the political spectrum, vacancies would only be filled when one of the parties held both the Senate as well as the Presidency.  Democrats could also raise the jurisprudential issues that arise from having an eight-member Supreme Court, not the least of which would be its inability to make “nationwide rulings on any issue in which the justices split 4-4.”[11] Finally, contrary to Senator McConnell’s argument, Democrats can argue the American did have a say in who will fill Justice Scalia’s void when they voted for President Obama in 2012 and the sitting Senate members in 2014.[12]

Republicans have many valid points at their disposal as well. First, the Supreme Court has worked efficiently with only eight members for extended lengths of time in the past. In fact, in a period spanning 1969-1970, the Court had only eight members for a total of 391 days.[13] If President Obama was unable to get a nominee confirmed before his term ends, the next President would still have roughly two months to get a new Justice approved before eclipsing that mark. Republicans could also point out that, while they generally result in a nominee’s approval by the Senate, there simply haven’t been very many instances of a seat on the Supreme Court opening up during an election year in recent history, and even fewer instances of it happening when the Senate and the presidency were held by different parties.[14]  In part because of the unique predicament we find ourselves in, Senator Ted Cruz’s statement that “It has been 80 years since a Supreme Court vacancy was nominated and [emphasis added] confirmed in an election year” is more or less correct.[15] Republicans could also argue that, while a blanket refusal by the Senate to even vote on a nominee is a remarkable measure, political maneuvering has been a common and recurring element of selecting Supreme Court Justices for both parties. For instance, the confirmation of Justice Kennedy in 1988, one of the few occasions in which a Justice has been confirmed by a hostile Senate around an election year, occurred only after Robert Bork had been infamously rejected by the Senate and Douglas Ginsburg had withdrawn.[16] This argument is especially bolstered by recent evidence of past Democrat leaders advocating for similar blanket refusals to confirm the President’s nominees, including Senator Charles Schumer[17] and current Vice President Joe Biden.[18] Lastly, while the American people did vote for President Obama in 2012, Senator McConnell could reasonably maintain that the “voice” of the American people as it resonates today would be better reflected by the next President selecting a nominee for the Court than for the nomination to come from a President who was elected four years ago.

While the public arguments thus far have principally centered on alleged constitutional imperatives, the compelling and persuasive contentions mentioned above avoid either party needlessly misconstruing the Constitution. Instead of camouflaging their arguments as constitutional mandates, Republicans and Democrats alike should ground their points in such political, pragmatic, and policy considerations. The political pyre of selecting the next Supreme Court justice is likely to burn on for the foreseeable future, but both Republicans and Democrats have sufficient arguments to support their respective positions without adding the Constitution to the fire.[19]

[1] J.D. expected May 2016.
[2] John O. McGinnis, Antonin Scalia – A Giant of Jurisprudence, Library of Law and Liberty, (February 2016), http://www.libertylawsite.org/2016/02/14/antonin-scalia-a-giant-of-jurisprudence/.
[3] George F. Will, Why Antonin Scalia was a jurist of colossal consequence, The Washington Post, (February 2016), https://www.washingtonpost.com/opinions/why-antonin-scalia-was-a-jurist-of-colossal-consequence/2016/02/14/6936b8fc-d359-11e5-9823-02b905009f99_story.html.
[4] Tomás Rios (TheTomasRios). “Scalia was a monster and no one’s job entitles them to respect.” 13 February 2016, 5:35 PM. Tweet.
[5] Glenn Greenwald (ggreenwald). “Don’t even try to enforce the inapplicable don’t-speak-ill-of-the-dead ‘rule’ for the highly polarizing, deeply consequential Antonin Scalia” 13 February 2016, 2:04 PM. Tweet.
[6] Daniel Politi, Senate Majority Leader: Next President Should Choose Scalia’s Successor, Slate, 13 February 2016, http://www.slate.com/blogs/the_slatest/2016/02/13/senate_majority_leader_mcconnell_says_next_president_should_fill_supreme.html.
[7] Jason Easley, Bernie Sanders Slams Republicans For Unprecedented Obstruction Of Obama Supreme Court Pick, Politicususa, (February 2016), http://www.politicususa.com/2016/02/14/bernie-sanders-confident-flip-hillary-clintons-superdelegates.html.
[8] See, e.g., Adam J. White, The Constitution Does Not Require the Senate to Vote on a Nomination, The Weekly Standard, (February 2016), http://www.weeklystandard.com/the-constitution-does-not-require-the-senate-to-vote-on-a-nomination/article/2001087.
[9] Amy Howe, Supreme Court vacancies in presidential election years, SCOTUSBlog, (February 2016), http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years.
[10] Steven A. Rosenberg, Warren spars with McConnell over Scalia’s replacement, The Boston Globe, (February 2016), https://www.bostonglobe.com/metro/2016/02/14/warren-slams-mcconnell-asserts-obama-has-right-name-new-justice/2tRZBpgDu5xbScSS0zG6UO/story.html.
[11] Mark Sherman, How Long Will SCOTUS Be Down a Judge?, US News, (February 2016), http://www.usnews.com/news/politics/articles/2016-02-17/supreme-court-may-face-extended-period-with-8-justices.
[12] See generally Josh Douglas, Justice Scalia, PrawfsBlawg, (February 2016), http://prawfsblawg.blogs.com/prawfsblawg/2016/02/justice-scalia.html.
[13] Chris Wilson, Antonin Scalia’s Open Supreme Court Seat Could Set Record For Vacancy, Time, (February 2016), http://time.com/4224348/scalia-vacancy-supreme-court/.
[14] Amy Howe, Supreme Court vacancies in presidential election years, SCOTUSBlog, (February 2016), http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years.
[15] Eugene Kiely, Cruz, Rubio Twist Court ‘Precedent’, FactCheck.org, (February 2016), http://www.factcheck.org/2016/02/cruz-rubio-twist-court-precedent/.
[16] See generally id.
[17] Blake Neff, FLASHBACK: In 2007, Schumer Called For Blocking All Bush Supreme Court Nominations, The Daily Caller, (February 2016), http://dailycaller.com/2016/02/14/flashback-in-2007-schumer-called-for-blocking-all-bush-supreme-court-nominations/
[18] Julie Hirschfeld Davis, Joe Biden Argued for Delaying Supreme Court Picks in 1992, The New York Times, (February 2016), http://www.nytimes.com/2016/02/23/us/politics/joe-biden-argued-for-delaying-supreme-court-picks-in-1992.html?_r=0.
[19] See generally R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992) (Scalia, J.).