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Nominating a New Justice: In the Eye of the Beholder

On February 13, 2016, Supreme Court Justice Antonin Scalia was found dead in the Cibolo Creek Ranch in Shafter, Texas, heating up the already-intense election season.

Who was Scalia?

Since the start of his service on the court, Associate Justice Antonin Scalia, a Reagan nominee, has shown a record of consistently opposing affirmative action and calling for strict interpretation of the constitution.

Scalia favored socially conservative policies, and in 2003 was one of the 3 dissenting justices who voted to uphold the Texas ban on sodomy. He was one of the 7 justices in Bush v. Gore who invalidated the recount of votes in the disputed Florida election of 2000, allowing George W. Bush to become the 43rd president of the United States. When asked about this decision in 2007, Scalia remarked, “get over it. It’s so old by now.”

What Happened, and Reactions

After his death, Scalia’s funeral was held at the Basilica of the National Shrine of the Immaculate Conception on Feb. 20th, where a traditional Roman Catholic Funeral was held. Vice Presidents Joe Biden and Dick Cheney both attended without much hassle. Some, like presidential candidate Ted Cruz (R-TX), stirred up both excitement and fear. Still others paid their respects before the funeral, like President Obama, who paid tribute to the justice as his body laid in repose a day earlier; he has been criticized for not attending the actual funeral.

But some were more concerned with the implications of Scalia’s death than the death itself, like Mitch McConnell (R-KY), the Senate Majority Leader.

The Controversy

One hour after Scalia’s death, the GOP leader issued a statement which shocked some and enraged others. The statement read: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

Many of his fellow Senate Republicans have voiced their support for his plan. Surprisingly, some conservatives have been critical of McConnell’s decision, most notably retired Supreme Court Justice Sandra Day O’Connor, a Reagan appointee who said that the Senate should confirm a replacement as long as he or she is qualified.

“You just have to pick the best person you can under the circumstances, as the appointing authority must do,” she said. “It’s an important position and one that we care about as a nation and as a people. And I wish the president well as he makes choices and goes down that line. It’s hard.”

Senator Elizabeth Warren (D-MA), a hero of the American progressive movement, agrees from a constitutionalist point of view. “Sen. McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice,” she posits. “In fact, they did — when President Obama won the 2012 election by five million votes.” Mockingly, Warren wrote on the same page, “I can’t find a clause (in the constitution) that says ‘…except when there’s a year left in the term of a Democratic President.”

Senator Ted Cruz (R-TX) has vowed to “absolutely” filibuster any nominations. “We’re advising that a lame-duck president in an election year is not going to be able to tip the balance of the Supreme Court,” he said, ignoring the fact that Anthony Kennedy, a Reagan appointee, was unanimously confirmed in 1988 by a vote of 97-0 in a Democratic Senate; audiences at the CBS Republican Debate on February 13 booed when a moderator pointed out this fact, reflecting how deep the partisan divisions run.

What Happens Now?

Not soon after Scalia’s passing, the New York Times indicated that Gov. Brian Sandoval (R-NV), a fiscal conservative who is sometimes socially and environmentally moderate (i.e. is pro-choice, supports alternative energy), might be considered for the post, owing to his prior experience as a district court judge. He soon removed himself from the vetting, though, with a notice saying that “The notion of being considered for a seat on the highest court in the land is beyond humbling and I am incredibly grateful to have been mentioned.” It is possible, however, that other socially moderate/liberal Republicans might be considered for the nomination.

An interesting alternative might be for Obama to re-nominate Sandra Day O’Connor, point out William Blake and Hans Hacker, professors of political science in the University of Maryland and Arkansas State University, respectively. They argue that her prior experience on the Supreme Court would make her the “undisputably qualified” nominee Obama promised, due to the pragmatism O’Connor has shown as associate justice. To make this even better, the former nominee was appointed by Ronald Reagan, a hero for the conservative cause. “A vote against confirming Justice O’Connor would be an admission that the patron saint of the modern Republican Party wasn’t infallible,” the professors write in an op-ed on the Baltimore Sun.

The justice for the justice appointment might, then, be in the eye of the beholder. What do you think? Should Obama surrender his rights to appoint a new justice in hopes of achieving reconciliation with a deeply partisan Senate, or should he “appoint someone who is indisputably qualified,” as he had promised?

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