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Antonin Scalia’s Replacement on the SCOTUS: Politics or a Chess Game?

scalia pic 1

On Feb. 13, Supreme Court Justice Antonin Scalia passed away. It was originally believed that the cause of death was natural causes; however, it was eventually reported that the justice had suffered from heart problems and high blood pressure. Scalia had served on the Court since 1986.

The death of any Supreme Court Justice calls upon the Commander in Chief to perform one of the most important presidential duties: the nomination for appointment of a replacement justice on the Court; however, the current political climate of unbelievable polarization between the parties makes Scalia’s death, specifically, a very interesting and complex issue.

For all intents and purposes, it technically is President Obama’s duty and most importantly, constitutional right to nominate a new Supreme Court Justice after careful consideration of various candidates. However, due to the fact that this country is in the midst of one of the most bizarre and competitive presidential elections in history, conservatives have voiced that they believe that President Obama should allow the next president to take on this task (since many of those on the right believe that they are going to take back the presidency come this November).

The question is: should President Obama exercise his right to nominate a replacement justice for Scalia, or should he wait and allow the next president to take on this task after his or her inauguration in January of 2017?    

Currently, very different strategic considerations are in the process of being made.  

What makes this situation so complex is that there are two sides—the Republicans and the Democrats—and they both want nothing more than to win (to have the outcome be favorable for their specific side).  

The Republicans want a more conservative person to be appointed to the Court and the Democrats want a more liberal one. Republicans especially want a more conservative replacement to be nominated and eventually appointed because Justice Scalia was inarguably the leading voice for conservatism on the Supreme Court. Essentially, what Republicans are primarily concerned with as of now is simply maintaining the status quo.

Consideration of what to do next from the Republican standpoint:  

There are a few different options from the Republican perspective. They can refuse to confirm whomever Obama nominates but risk the upcoming rulings for this year to turn out four against four and have to revert to the lower court ruling with no precedent set. Most lower court rulings come from a more democratic side, giving an advantage to the liberals.

Another consideration to make is asking themselves how much of a better hand they think they’ll have to play with next year than they do right now. If they (the Republicans) are confident that they’re going to win the presidency this year and maintain control of the Senate, then they should absolutely block any of President Obama’s nominees. However, conservatives currently have less than fifty-fifty odds of winning the presidency come this November, so unless those odds change soon, that’s another strike against them.

However, if they’re optimistic, they might think that fifty-fifty odds are okay because at least it’s a chance. However, if they lose the Presidency, there is a chance that they could also lose control of the Senate, which would obviously not be ideal to lose both. The Republicans currently have 54 Senators but if one considers states such as Pennsylvania, Ohio, Illinois, Florida, and New Hampshire, they all have Republicans that won in 2010, which was the year of the Tea Party. States such as these have fifty-fifty odds at best for a Republican victory again.

Being that this is a year with a presidential election that will lead to higher voter turnout that will probably advantage Democrats, there is a chance that Republicans could lose those seats. This would be especially likely if Hillary Clinton ends up running against a fairly unpopular candidate like Ted Cruz. This would put the Senate “…in pretty big jeopardy,” said political science professor Frank Orlando.  

The Republicans can either accept President Obama’s nominee now, block the nominee and take a chance on optimism in hopes that they’ll take back the presidency and maintain control of the Senate, allowing them to definitely put a conservative on the Court, risk losing just the presidency and remain in the same situation that they’re in now with control of just the senate, or risk losing both the presidency and the Senate and have someone far more liberal appointed to the Court.

The last option is what Republicans fear most, especially since Hillary Clinton has mentioned possibly nominating President Obama to the Court if she’s elected president. Many believe that she’s saying this on the campaign trail simply to ensure that she maintains her support of African American voters, but Republicans still fear that happening.

When weighing their three primary options and each one’s outcome if they stonewall, Republicans will be considering that one is good, one is the same as things are now, and one is way worse and would be very bad for their party. They have to think about this strategic choice in terms of how likely they believe each of the possible outcomes are to happen. They have to consider that if they think that their odds are high of taking back the presidency and maintaining control of the Senate, then they should definitely not take any action and vote the nominee(s) down. But, if they think that the other 2 options are more likely [losing the presidency again but maintaining control of the Senate or losing both the presidency and the Senate], then they shouldn’t stonewall.

The next Senate elections are this November when the presidential election will occur. Another important consideration to make is that one-third of the seats are up for election, meaning that there are a lot of Republicans up for re-election and fewer Democrats. Any vulnerable Democrat back in 2010 lost in the Senate race so now, Democrats have to “…play a lot of defense in the Senate,” said Orlando. There are very few seats that they could lose from 2010 so Republicans are more vulnerable now.

Consideration of what to do next from the Democratic standpoint:  

Whatever decision is made by President Obama will “…affect the calculus” the Republicans have, said Orlando. If the president were to nominate someone very liberal, Senate Republicans would figure that someone like that would clearly be no better than their situation last year, even if everything bad happens [they lose the presidency and control of the Senate]. But, if Obama nominates someone more moderate, Republicans might consider someone like that would be a good deal. It’s likely that the president will consider choosing someone like this because it’s common knowledge that any very liberal nominee will most likely be blocked.   

Also from President Obama’s perspective, he might consider nominating a liberal to force Senate Republicans to block the nominee, which in turn would make them look bad going into the election. An example of this would be if the president nominated U.S. Attorney General Loretta Lynch. It wouldn’t look good for Republicans to block a nominee that would be the first African American woman on the Supreme Court. So, many are thinking that Obama might take this chance. Republicans are already in slight jeopardy going into the Senate elections, but they will be even more so if they block an historic nomination by Obama.

Democrats in general – especially those on the campaign trail [Clinton and Sanders] – want Obama to select the liberal nominee option because they know that it would help them by putting their Republican candidate counterparts in a bad position. This option is risky, but it’d be more risky if Obama thought that Democrats were going to lose the White House this coming November. If Democrats remain confident that they’re going to win the 2016 election, they can afford the risk.

In terms of party though, Obama might be more willing to put a moderate on the Court because that would leave him with a stronger legacy as this is a chance for him to put a third justice on the Supreme Court. The president will have to consider both of his primary options because one will help his fellow Democrats and the other will be more beneficial for him.   

Including Scalia, conservatives had five people on the Court, leaving the liberals with four; this means that with Scalia’s passing, each side currently has four justices. This makes the stakes even higher because with the passing of one of the justices within the majority party on the Court, the position up for replacement is the swing vote.

Something to keep in mind, however, is that the result of a SCOTUS vote does not always go the way it’s expected to. While the position up for replacement will most likely be the swing vote for whatever party that justice sides with, it is possible that future votes won’t go the way they’re predicted to because that’s the way it’s played out throughout recent history.    

An example of this unpredictability is last year’s same-sex marriage vote. The outcome was clearly in favor of the liberal party, even though the liberals were not the majority party on the Court at the time. The two Obamacare rulings were the same case: a conservative majority voting on a more liberal outcome. It’s no longer as easy to predict voting patterns among the Supreme Court as it is in a legislative sense where it’s virtually very simple to predict the outcome of a vote.

Another important aspect of this situation to consider is how important it actually is or isn’t that a new justice be nominated and eventually appointed to replace Scalia. Most people think that it’s massively important; some even that think that the most important presidential duty is the nomination and eventual appointment of Supreme Court Justices. Republican presidential candidate Ted Cruz recently stated something along the lines of our country (but more so, his party) being one Supreme Court Justice away from losing all of our liberties.

Because of this situation’s significance, it’s not shocking or surprising at all that conservatives want President Obama to wait almost an entire year until the next president is sworn in to nominate a new justice. This is an extremely important issue to many people and it certainly will have an impactful affect on future cases that are voted on by the Supreme Court.  

Nowhere in the Constitution does it state that there must be nine justices on the Supreme Court. The Court could have more than nine or it could even stay at eight; there is no specified number. It’s typical for the Court to have nine simply because that’s how it’s been throughout history.

Something that liberals are hesitant to accept or even consider is that if there was currently a Republican president serving with a strong possibility of a Democrat being elected in the near future, it’d be the exact same case. Liberals would be voicing their opinion loudly and clearly that the current president should wait and allow the next president to take on this duty.

In Eisenhower’s last year in office in 1960, Democrats attempted to pass legislation saying that they were not going to confirm anyone that he nominated that year because they knew they were going to be too conservative. Additionally, in 2008, Chuck Schumer made speech after speech pushing for Democratic senators to not confirm any of George W. Bush’s nominations in his last year because there was a strong possibility that Democrats were going to win the presidency and be able to get people that they wanted appointed. So, liberals can argue the insanity of conservatives believing that Obama should wait to nominate a new justice until they’re blue in the face, but it would be the same case for them if the tables were turned because it has been in the past.  

An additional topic that’s been in discussion has regarded how rapidly the story changed from Scalia’s death to what (or who, rather) comes next and the slight level of disrespect that was quickly noticed upon that. There was a very short amount of time between the announcement of Scalia’s death and Republican Senate Majority Leader Mitch McConnell’s statement that he and his party won’t even be considering an Obama nomination.

“I will say that what did surprise me is how poorly the Republicans handled the news of Scalia’s death from a public relations perspective because that is something you can control. If they have no intention of confirming whoever the new person is, then why would you make a big speech about it?” said Orlando. “Just don’t confirm them if President Obama nominates someone. People are saying that it’s President Obama’s right, but it’s his right to nominate someone; it’s the Senate’s job to confirm them, so each side has their own constitutional argument here. If the Republicans don’t want to confirm Obama’s nominee, they don’t have to because there’s nothing that says they have to.”

In addition, “people were racing out to have their opinions heard about it which made me see that as a sign of less civility and more polarization and people just not caring much about the person, but more about the political ramifications of that person,” said Orlando.

Many calculations are being made but in the end, it’s really going to depend simply on how much leverage each of the sides thinks they’re going to have after the election in November. The first mover is going to be Obama as he’s going to select the nominee, but then it’ll be in the hands of the Republicans to examine their options and come to a conclusion on what they want to do. They’re going to have to decide which of the scenarios will be best for their party.

There is no timeline that Obama has to follow to nominate someone by, but a few weeks have already passed so it is likely that a candidate will be announced fairly soon. A nominee will also likely be announced soon because the longer that Obama and his administration wait, the more time Republicans have to argue to the people that he’s taking too long. Additionally, President Obama’s nominee quite possibly could get denied, so he’ll have to choose someone sooner rather than later in case he has to propose a different candidate.  

Many are comparing the strategic planning and decision making happening to try to replace Scalia on the Supreme Court to a game of chess. “It truly is a strategic game. But, that’s what most of institutional politics is,” said Orlando.

A lot of discussion regarding considering morals into a decision such as this one has been brought up as the country waits to see who President Obama nominates and if the Republican Senators choose to accept or deny the candidate. Many think that morals and ethics should absolutely be considered, and others think they should be left out completely.

“People consider right and wrong, but you can’t really think about it in terms of that because if you do, you won’t be able to make sense of it. That’s why people say they don’t understand what’s happening in politics and question why Republicans and Democrats say what they say. But we’re [citizens] thinking about it differently than they [politicians] are. You have to think about it as a game. It’s a zero sum. ‘If they win, we lose.’ So, if you consider it in that context, then it makes sense why the Republicans say they’re going to stonewall,” said Orlando.

It is expected that the only way that this process of replacing Scalia would affect the Republican presidential race would be by people with a more sophisticated knowledge of politics possibly considering that this issue reinforces the stakes of the election for a very unpredictable candidate such as Trump. Some might consider if something like this were to occur under a President Trump, whom would he pick? These types of people might be considering and questioning a situation like this with Trump in a presidential position.

This process certainly won’t be an issue for the average voter, though. The arguing over this issue will have an affect on the campaign, but what happened in the immediate aftermath [the slight disrespect shown by the Republican party] won’t because if a person was paying that much attention, they probably already had their mind made up about the parties and who they’re supporting in the upcoming election.

The majority of laypeople most likely don’t even know who Antonin Scalia was, even though he was the most well known justice on the Court, or how someone even gets on the Supreme Court. Also, the average citizen doesn’t realize the severity of his death and what, or who, rather comes next and what this all means. Most don’t have an incentive to understand or care about anything relating to this. As a result, the quarreling over this process won’t have a significant enough affect on the presidential candidates’ polling numbers.

Many believe that if we reach the point where it looks like the Republicans won’t accept Obama’s nominee(s), as a result, we’ll begin to see rhetoric from the Clinton campaign of discussion of her nominating President Obama to replace Justice Scalia.

Now, we continue to play the waiting game.   



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