Scalia's death sparks perilous political fight

WASHINGTON—Supreme Court Justice Antonin Scalia’s sudden death shocked the nation on Saturday and raised the stakes in November’s presidential election. It also created a months-long battlefield fraught with political risk for both parties on Capitol Hill.

Scalia’s death comes at the beginning of an election year during which members of both parties expect little legislative movement. Approving a budget through regular order would be a major accomplishment—and appears increasingly unlikely.

Within hours of Scalia’s death, Senate Majority Leader Mitch McConnell, R-Ky., while expressing his condolences, said the American people should have a say in who fills the new seat: “This vacancy should not be filled until we have a new president.”

But President Barack Obama promptly announced he intends to have his say: “I plan to fulfill my constitutional duties to nominate a successor in due time.”

Who will win the coming power struggle? History and today’s political dynamics point to Republicans, but the path ahead could prove treacherous to both parties.

Democrats point to 1988, when a Senate controlled by Democrats approved President Ronald Reagan’s nomination of Anthony Kennedy, as evidence Republicans should act. But that seat opened in June 1987 and only remained vacant until February 1988 because Democrats scuttled two prior nominees, including the infamous rejection of Robert Bork. Reagan nominated Kennedy at the end of 1987.

The last time a president asked the opposing party to confirm a replacement for the Supreme Court during an election year was 1888. Morrison Waite died unexpectedly of pneumonia in March of that year, and his status as chief justice may have contributed to the urgency of approving his replacement. A Republican-controlled Senate approved Democratic President Grover Cleveland’s appointment on a 41-20 vote in July—less than four months before Cleveland lost his reelection bid to Republican Benjamin Harrison.

“That’s a long time [ago],” said Hans von Spakovsky, senior legal fellow at The Heritage Foundation. “I would be very surprised if Republicans agree to confirm anyone that the president puts forward.”

Obama won’t be on the ballot this fall and has little to lose by making an appointment. Court observers have released short and long lists of potential replacements, but Obama has to find one willing to go through the potentially career-threatening political fight virtually guaranteed to occur.

Nominating a liberal justice would make Republican opposition easier, so Obama may elect to go with a moderate—even a Republican—who would be harder to oppose.

Regardless of Obama’s choice, Republicans, who hold a 54-46 Senate majority, will face intense pressure from the party base to block any nominee.

“Lame ducks don’t make lifetime appointments,” said Hugh Hewitt, an influential conservative radio host, in a CNN interview. Hewitt said Democrats such as Sens. Chuck Schumer of New York and Patrick Leahy of Vermont blocked many Republican nominations and helped create the climate they’re complaining about today.

A full blockade also carries considerable risk for Republicans, especially in a year when control of the Senate is in play. The GOP is defending 24 of the 34 seats up for election this fall, including several in states Obama won twice. If Republicans look like unreasonable obstructionists, it could help Democrats take the Senate and the White House in November.

Von Spakovsky said he expects Obama to nominate a racial minority or some kind of “first” to the court, allowing Democrats to campaign on Republican opposition in November.

Democrats have said a vacancy of more than a year is unacceptable, but numerous vacancies have stretched for more than 12 months, including two in the John Tyler administration. In 1844, the Senate rejected Tyler’s first attempt to replace Smith Thompson, declined to act on another nominee, and forced Tyler to withdraw three subsequent picks in order to stall until the November election.

After a nearly 14-month vacancy, the Senate finally approved a nominee weeks before Tyler left office in 1845, but a second vacancy went unfilled for a record 27 months.

With those precedents in mind, Obama could elect to make a recess appointment—which some argue he could make while Congress is away this week. According to Article II of the Constitution, a recess appointment can serve without Senate approval, but only until the end of the Senate session.

The White House has said Obama won’t make a recess appointment, but von Spakovsky said he’s not convinced.

“I frankly don’t believe that,” von Spakovsky told me. “I could very well see them changing their minds and putting in a recess appointment, [thinking], ‘We could at least get some good decisions from a liberal majority just this year.’”

Even a short-term recess appointment would have huge implications: The court is set to decide consequential cases involving abortion, unions, and religious liberty.

Although a confirmation remains highly unlikely, conditions could shift to create an environment ripe for compromise. For example, if Hillary Clinton appears poised to win the White House in November, Republicans would be motivated to cut a deal with Obama to put a moderate on the court, rather than risk a liberal confirmation next year.

Listen to WORLD Radio’s Nick Eicher and Mary Reichard discuss the life and legacy of Justice Antonin Scalia on The World and Everything in It.