The death of Opus Dei-lover Antonin Scalia while on an all-expenses-paid trip to a remote area of western Texas to kill animals created a vacancy on the Supreme Court at the height of the 2016 Presidential election season, opening up the prospect of a 4-4 split on the Court in important cases for the foreseeable future. Or not…
This week, President Obama may nominate someone to replace Scalia. Here are his options:
- Nominate a liberal lightning rod. He could nominate someone like Senator and former Harvard Law Professor Elizabeth Warren, which would delight his progressive base, but also would infuriate the Republican opposition in the Senate; and remove her important liberal voice in the Senate and in the Democratic Party if by some miracle she was confirmed. Most likely, this would cement the vacancy for the immediate future. There has never, until now, been a vacancy on the Court for more than 125 days.
- Nominate someone likely to be confirmed by the Senate. A name floated recently was Nevada Republican Governor Brian Sandoval, a moderate who might just get a vote and be confirmed by the Senate. But his nomination would enflame Obama's Democratic base, especially if he was confirmed and was a more-of-the-same conservative vote on the Court retaining the 5-4 split supporting Republican positions. Sandoval has removed his name from consideration, but other names could surface.
- Nominate an appellate court judge recently confirmed by overwhelming margins by the Senate with a moderate-to-liberal voting record. President Obama reportedly has recently interviewed several such judges, including Indian-American Judge Sri Srinivasan of the D. C. Circuit and African-American Judge Paul Watford of the Ninth Circuit. This would be a safe choice, as the judge could continue hearing cases on his appellate court while awaiting a vote on confirmation. If it does not happen, he just continues in his present job.
- Appoint himself.If no action is taken on his nominee until after the November election, President Obama could withdraw that nomination and use the period (as brief as it may be) between the adjournment of the 114th Congress (no later than January 3, 2017) and the convening of the 115th Congress (starting on January 4, 2017) to appoint himself to the Court, effective immediately or at the end of his Presidency. This would be a two-year appointment only, but there is precedent for doing this. In 1956, after the election, President Eisenhower made a recess appointment of Judge William Brennan to the Court. Since he was reelected, Ike thereafter nominated Brennan for a lifetime term, and the Democrat-controlled Senate confirmed the nomination of the already-sitting Justice Brennan (who turned out to be a closet liberal).
I have talked to University of Chicago students who took his con law course, and they said Obama was the most brilliant person they ever met.
President Obama taught constitutional law at the University of Chicago Law School, from which I graduated, before becoming a Senator. I have talked to University of Chicago students who took his con law course, and they said Obama was the most brilliant person they ever met. As a student, he was President of the Harvard Law Review, and would be an intellectual force on the Court. There is no requirement that a Supreme Court Justice have prior judicial experience, and some of the very best Justices in the past also had none.
Alternatively, if the President's nominee has been sitting without a Senate hearing for the entire year, he could just appoint that person to the Court for the two-year term. If a Republican is elected President in November, the urgency to do this would be great. If a Democrat is elected, and the Democrats retake the Senate (24 Republican Senators are up for reelection versus only 10 Democrats), the President could just urge his successor to carry over his nomination to 2017.
There also is the possibility that another (or other) vacancies could develop on the Supreme Court in the coming year. Justice Kennedy is now 79, and Justice Ginsburg is 83. Either or both of them could decide to retire, in Ginsburg's case if a Democratic President is elected and the Democrats have a strong majority in the Senate next year.
There is no set number of Justices required for the Supreme Court to function: President Roosevelt famously and unsuccessfully tried to pack the Court with more Justices after the 1936 election, and the Court could function with seven justices for the foreseeable future. But a 4-4 split on the Court would mean that decisions of lower courts would be upheld unless one of the remaining conservative justices could be convinced to "jump ship", as Chief Justice Roberts did on two recent Obamacare decisions.
Here is one scenario: President-elect Trump announces that he will fill the Supreme Court vacancy by nominating Senator Ted Cruz to fill the Scalia vacancy, to be voted on by the still-Republican-controlled Senate after it convenes on January 4, 2017, and after President Trump is inaugurated on January 20, 2017. The 114th Congress adjourns late on January 3, 2017, and an hour later, President Obama appoints himself to fill the vacancy. Chief Justice Roberts then swears him in, and also swears in Vice President Biden as President for the two remaining weeks of his term.