As we saw while going through the Constitution, when a vacancy opens up on the Supreme Court, the President nominates a new justice and the Senate needs to confirm the nominee by a simple majority vote. As we also noted, though the Constitution does not say a word about political parties, political parties play an enormous part in the way things work–now more than ever. The framers at Philadelphia in 1787 might well have assumed that the president would appoint a justice based on who was the most qualified and virtuous, and that the Senate would confirm the nominee as long as they agreed that the nominee was qualified and virtuous, but: NOPE! The Court right now is divided between conservative justices appointed by Republican presidents and liberal justices appointed by Democratic presidents, and each party wants to control the Court ideologically for the next generation to come. So…what will happen if a vacancy opens up on the Court now?
Well, it has. Right in the middle of the current Supreme Court year, when the nine justices have already heard a number of the cases that they will soon be ruling on, conservative Justice Antonin Scalia, who was appointed by Reagan, has just died. What does this mean? It means that if Obama successfully appoints a liberal justice now, the Court will have five liberal justices and thus a liberal majority.
Unfortunately for those who would like to see that happen, any justice whom Obama appoints will have to be confirmed in the Senate, and the Republicans have a majority there. In fact, a staff member of one of the Republicans on the Senate Judiciary Committee has just tweeted this comment: ““What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?” And, as a link below shows, the Senate Majority Leader has announced that he thinks the confirmation vote should wait for the next president. (Wow!)
It looks as if the current season will probably conclude with just eight justices. But the new court session starts next October while Obama is still president, so you can expect Obama to try to fill that vacancy. Most likely, he will appoint a justice who does not have a clear paper trail of opinions that are either conservative or liberal, one who he hopes will be liberal but about whom nobody knows for sure–and one whose qualifications are good enough to put Senate Republicans on the defensive if they don’t act. So far, Obama hasn’t been very successful at getting even a few Republicans in either chamber to work with him on very many things, but this will be interesting to watch.
It should also be noted that, when a president appoints a justice and hopes that justice will tow the ideological line, it sometimes backfires. When the elder Bush was president and the Democrats had the majority in Congress, he appointed David Souter of New Hampshire to the Court, hoping he’d be conservative. Surprise! He was consistently liberal in his rulings. So even if Obama gets the Republicans in the Senate to consider a nominee, there’s no guarantee.
This will be an interesting saga to watch, this last year of the Obama presidency.
Also in Politico
Any thoughts? Feel free to comment.