Washington, DC - The politico-legal battle to replace just-deceased U.S. Supreme Court Justice Antonia Scalia is generating more heat than light.
Canadians, for whom their Supreme Court is a minor actor in domestic politics, are always puzzled over the intensity of the arguments over every aspect of the U.S. “Supremes.” Indeed, in some respects, Canadian have “to die for” procedures for filling their Supreme Court. Were they to apply to a U.S. president, the U.S. politico-legal scene would be infinitely different. Essentially, the prime minister proposes—and the prime minister disposes so far as naming justices to the Canadian Supreme Court. The most recent innovations of some gentle questioning by a parliamentary committee are optional rather than obligatory.
In the United States, the roles of the president and the senate are clear in the Constitution:
“…he shall nominate, and by and with the Advice and Consent of the Senate shall appoint..Judges of the supreme Court…(Article II, Section 2)
Thus to the first question: Can the president nominate a Supreme Court justice at any point while he is president (including his last year in office)? The answer is unquestionably “yes.”
And to the second question: Can the senate refuse to act and/or defeat a presidential nomination at any point? Again, the answer is “yes.”
Thus the blowhard exercise by all concerned seeking to wrap themselves in constitutional language and/or precedent regarding who/what/when Supreme Court nominations are possible/necessary is pure political posturing.
The dispute over replacing Justice Scalia is simply power politics.
Those who wish to replace him immediately are liberal Democrats seeking to install a leftwing Supreme Court justice who will deliver reliably left-liberal decisions for the next 20 to 30 years. Such a result would alter the present 5 to 4 slightly conservative Court to a clearly liberal Court.
The Republicans would rather die first. So if President Obama nominates a prospective justice, the Republican Senate will obstruct action on him/her to prevent a vote before the November election.
To salvage their political future, the Republicans must win the 2016 presidential election. Given the ages of the Supremes, three plus Scalia, are likely to be replaced during the tenure of the next president, whether it be four or eight years. If the Republicans win, the president will nominate a reliably conservative jurist. If the Democrats, win (but the Republicans hold the Senate) the president will nominate a strong liberal jurist with whom the Republicans may attempt to defeat.
And it would be no surprise for the Senate to defeat a presidential nominee. Democrats have been particularly adroit at defeating Republican presidential nominees three since 1969 (or forcing their withdrawal through adverse publicity, e.g., Douglas Ginsburg in 1987 for the revelation that he had smoked marijuana—today he might be rejected for having not/not so indulged).
Nevertheless, for today the contretemps will be used to galvanize the “base” for both parties. The Republicans through pure “must win” desperation arguing that their political vision of the United States is at risk. The Democrats may nominate a benchmark jurist, e.g., among the “mentioned” are a South Asian nationality justice and an openly gay justice. Recalcitrance by the Republicans could be effectively used to paint the Republicans as racist/sexist Neanderthals.
Let the battle begin.