And There Were Eight: Life After Scalia

By William Goodall
Correspondent, International Relations Undergraduate Student

On 13 February, United States Supreme Court Justice Antonin Scalia, was found dead at age 79. The longest serving justice on the Supreme Court, Scalia was appointed by former President Ronald Reagan and served for 29 years. While often criticized by liberals for his hard-line conservative stance and almost constant dissenting opinions against liberal and progressive rulings, Scalia is being acknowledged by both parties as one of the greatest political minds of his generation. However, while Scalia’s family mourns their loss, the political world has already started to ask “who’s next?”

Scalia’s death may just be the harbinger of doom for old guard conservatism in the United States.  Scalia was considered to be one of, if not the most conservative justice; the only other hard line conservative on the bench was Clarence Thomas. With his passing, only Thomas remains to defend the Reagan era ideology, and may find himself a political minority after Obama’s choice is nominated.

While Scalia’s family mourns their loss, the political world has already started to ask “who’s next?”

But confirmation is an entirely separate matter. In the face of staunch Republican opposition, many have been led to wonder if President Barack Obama can get a justice appointed before the end of his tenure as president. Common logic and history would say yes, as the average time of appointment sits just above two months, however a majority of Republicans have stated they will attempt to block the nomination until a new president has been elected: one they hope will agree with their political philosophy.  This blockade, known as the Thurmond Rule after the Dixiecrat senator in the 1960’s who prevented Lyndon B. Johnson from appointing a last minute justice, has been used in the past, both by Democrats and Republicans in hopes of the opposition party taking control of the next election. Today it appears it is being invoked again, with Senate Majority Leader Mitch McConnell (a Republican from Kentucky) stating that “the American people‎ should have a voice in the selection of their next Supreme Court Justice” and “therefor, this vacancy should not be filled until we have a new president.”

Obama, however, faces another issue when it comes to nominating a candidate.  While the Thurmond Rule may delay him, the Republicans will lose a large deal of face amongst those with political efficacy if they stall for over a year when it comes to nominating one of the most important positions in the United States. More likely Obama’s crisis will come from finding a candidate who the Senate will be forced to approve. As mentioned before Scalia was arguably one of, if not the most conservative member of the Supreme Court, and was revered as a premier member of the party. Conservatives (the majority party in the Senate) will never agree to replacing him with an incredibly liberal candidate. Instead, Obama will have to find a moderate, or even a moderate-conservative, to replace Scalia if he wants any chance at appointing his candidate.

More likely Obama’s crisis will come from finding a candidate who the Senate will be forced to approve.

A moderate candidate in a vacuum would not be a major issue for the Democrats.  During the entirety of the Obama administration, the Democrats have been the minority on the bench, with four liberal sitting justices to the conservatives’ five. Replacing Scalia with a moderate conservative or an independent, would improve the odds of the court swinging left. That being said, Obama needs to take into consideration the state of the Court. For instance, the average retirement age of Justices is just below 80, and two Justices currently are already above that and one more will be in only two more years.  The next president of the United States will have the power to likely replace three justices, two Democrat and one Republican. If Obama were to nominate a moderate conservative just to do it, and then Hillary or Bernie were to lose the election, the Court would sit 2-7 in favour of the Republicans, making the occasional party lines crossing votes irrelevant in the grand scheme of things. However, if the Democrats were to win the election (which according to national polls is the most likely result) his compromising would be a wasted effort as the new president would not need to pander as much to get a candidate on the bench. 

This leaves the question, who does Obama nominate? While Obama may attempt to bring back Caitlin Halligan (former Solicitor General of the State of New York who’s appointment to the DC court of appeals was denied for two years by Senate Republicans) the media has turned it’s eye on the real prize: Judge of the United States Court of Appeals for the District of Columbia Circuit, Padmanabhan Srikanth “Sri” Srinivasan.

This leaves the question, who does Obama nominate?

Political analysts and journalists alike have been predicting Srinivasan’s candidacy since 2013. Jeffrey Toobin of The New Yorker stated that “if Srinivasan passes this test (appointment onto the DC Court of Appeals) and wins confirmation (a task in which he was successful), he’ll be on the Supreme Court before President Obama’s term ends.”  That bold prediction seems to be becoming truer by the minute.

Srinivasan is considered a moderate by most standards. According to National Public Radio’s Nina Totenberg, Srinivasan has “huge bipartisan support in the legal community.” This clearly was proven true by his unanimous, 97-0 confirmation. His qualifications alone already make him a tantalizing candidate for Obama to tout, however, it is his legal work and political connections that truly make him shine. Srinivasan made a name for himself during the DOMA (Defense of Marriage Act) and Proposition 8 act cases, those which lead to the legalization of gay marriage in the United States, championing for gay rights. At the same time though, Srinivasan was called “a lifelong friend” by Republican presidential hopeful Ted Cruz, and has many friends across the aisle in the senate. Srinivasan may just prove that a nomination won’t be impossible while Obama is still President.

Ending his tenure after confirming the first Asian-American Supreme Court Justice may just prove to be the period on an (arguably) successful presidency for Obama.  However, even though Srinivasan may be the perfect candidate, McConnell has put his Party above the correct decision in the past; and with Republicans trying their best over the next several months to scorn and subdue the President’s effectiveness, this may just be the case.

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Feature image courtesy of United States Mission Geneva.

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