The day Justice Antonin Scalia died, February 13, marked the beginning of what may become the most contentious, high-stakes Supreme Court nomination processes in history.
Justice Scalia was a uniquely controversial and influential member of the Supreme Court. In particular, he promoted originalism, a way of interpreting the Constitution that seeks to understand the original meaning of the text at the time it was written. Although his views were controversial, his intellect was revered even by those who opposed him. His dear friend and polar political opposite, Justice Ruth Bader Ginsburg, is among the many who grieve his loss.
Based on the Constitutional requirement of "advice and consent," a new justice will be nominated by the President, go through hearings in the Senate Judiciary Committee and face vote before the full Senate—if the current Republican Senate leadership allows.
Why is it important?
The fight to replace Justice Scalia on the Supreme Court will get ugly, and will shine a spotlight of the political fault lines of this election cycle.
The Senate is controlled by Republican legislators 54 to 46. In other words, for Senate Democrats to appoint President Obama's nominee, they will need the support of at least 4 Senate Republicans. But within hours of Justice Scalia's death, Senate Majority Leader Mitch McConnell pledged not to hold hearings, schedule a vote, or meet with President Obama's nominee.
Senate Majority Leader McConnell says he will not consider any of President Obama's nominees. Is this a mistake?
McConnell faced two choices: allow a vote on the nomination or outright refuse. His choice, while a risk, was a smart strategy to stimulate the Republican base in an important election year.
In the polarized political environment that now exists, McConnell understood that allowing a vote—and potentially a liberal Supreme Court successor—would be the mistake.
His choice reflects his commitment as Majority Leader to supporting vulnerable Senate Republicans up for election, all of whom rely on the energy of their base. Right now, that necessitates a strong stance against the President.
McConnell is adeptly using the nomination process to make a statement. He is showing, to his base, the importance of a Republican Senate as a check against a liberal White House.
Though his choice inspires criticism from a moderates' point of view, it was a strategic move in a high-stakes and deeply partisan election cycle.
The Senate is obligated by the Constitution to fill a vacant seat on the Supreme Court. Unilaterally rejecting any nominee is unprecedented, irresponsible, and politically miscalculated.
The Senate has never taken more than 125 days to confirm a Supreme Court nomination—even in an election year. In fact, the Senate has confirmed Supreme Court nominations in election years eight times since 1890. The average time from presidential nomination to Senate vote is 25 days. There were 342 days left in President Obama's term when Justice Scalia died.
The Constitution requires the Senate to give "advice and consent" to the President on his nomination. McConnell and other Senate Republicans are doing neither, voluntarily leaving a deadlocked Supreme Court.
Instead, McConnell used one of the Senate's most important responsibilities in a deeply flawed political strategy. He thought obstructionism would galvanize votes to hold the Senate. It has had the opposite effect: only 38% of Americans support his blockade.
- The New York Times' obituary of Justice Scalia: "In dissent, he took no prisoners."
- The #DoYourJob campaign on Twitter: "Quit playing games with the Supreme Court."
- The New Yorker's analysis of Mitch McConnell's strategy: "So the battle has begun."
- The New York Times' visualization of SCOTUS nominees in election years: "The Senate has never taken more than 125 days to vote on a successor."