On February 13, Supreme Court Justice Antonin Scalia unexpectedly passed away. He served for nearly 30 years, and his originalist interpretation of the Constitution inspired a movement of legal thinkers. The Davidsonian spoke to Dr. Scott Boddery, Visiting Assistant Professor of Political Science, about the repercussions of Scalia’s death. Dr. Boddery’s research focuses on empirical legal studies, judicial politics, presidential politics and American legal institutions.
What effects will Scalia’s death have on the 2016 presidential race?
So Scalia’s death is a game changer for the Court. There’s no way to underscore that enough. Regarding the presidential election, though, obviously the Republican candidates are going to be really jumping at this as a talking point. Really, it’s only going to effect the election if the Senate doesn’t confirm whatever nominee President Obama puts forward. That’s the only way that it really becomes crucial. If they obstruct, then the 2016 Presidential election becomes a referendum on the Supreme Court because it was an untimely death in the sense that he passed away under a democratic President. It changes the status quo of the Court dramatically, from a 5-4 conservative to a 4-5 liberal. Scalia, for the important, hot button issues, was a slam-dunk conservative.
In 1986, when President Ronald Regan nominated Scalia to the Supreme Court, the nomination was considered by the Senate for 85 days and eventually approved by a tally of 98-0. Is such unanimity typical?
It generally is. It’s not always 98-0 or 97-0. There are often some holdouts. But I think the Court has become increasingly politicized, as of late, especially the nominee right after Scalia, Robert Bork. It was a very contentious vetting process for the Senate, and they ended up forcing a vote and he was not confirmed. The Senate turned him down. It’s interesting because the similarities between Scalia and Bork’s jurisprudence are almost identical, but Scalia was approved unanimously and Bork was kicked out. The reason was that the seat that was in play was considered to be a swing seat. If you can get a swing seat that more reliably goes one way or the other, that’s what you’re really looking for. His name has now become a verb—you can be ‘borked’ as a judge.
What influence did Scalia have on the Supreme Court? How did his originalist views affect the climate of the Court?
He started the cottage industry with his original jurisprudence. The Federalist Society, which basically mirrors his ideology, was started in 1982. It was nonexistent before this. He’s remarkably consistent in applying that originalist thought into his case opinions. Of course, you can pick out opinions here and there where he’ll sway from that line of thought. But he was tremendously influential.
As a conservative, Scalia balanced the dynamic between a four-member liberal wing, four-member conservative wing, and one moderate Justice. What repercussions will his death have for future decisions by the Supreme Court, particularly in regard to the six big cases—abortion, contraception, unions, voting rights, affirmative action, and immigration— on the Court’s docket this term?
Affirmative action is probably still going to be decided this term, only because Elena Kagan recused herself. So that brought the Justices down to eight before his death. Now, of those remaining eight, it was probably a 5-3 [decision], and now that he’s gone, it’s a 4-3 because she’s still recused. So that case can still be decided and have good law come from it—good law meaning established precedent. The others, though, because of a 4-4 tie, there are two ways to look at it. In the past, it’s been treated either as a 4-4 tie that affirms the lower court’s decision because it will just be two concurring opinions – neither one outweighs the other – or they reschedule for the next term. So you’ll see this in the past where a Justice suddenly has a become extremely ill and rather than risk a potential tie, they’ll reschedule arguments for the next term. I think that’s the way it’s probably going to go. But if you think about it, if they reschedule the remaining cases that are probably going to result in a tie and the Senate obstructs filling the open seat, then the Court is going to be halfway through it’s term next year. So just logistically, this is really a nightmare for the Court. Potentially, they are going to be stuck with 4-4 ties, which is the remainder of this Court term and half of the next Court term.
How realistic are the chances that a new Justice will not be approved by the time the next President takes the oath? Does the Senate, which is majority Republican, have the authority to block the democratic process?
They definitely have the authority to turn down a nominee that the President puts forward; that’s certainly within their right. Whether or not they do that for political reasons and obstruct to essentially gamble and hope for a Republican getting elected, that’s a different question. I wouldn’t put it past either Republican or Democratic Senators if the roles were reversed. They can only work with the rules in front of them, and one of those rules is called the Thurmond Rule. It applies to vacancies that occur within the last six months of a presidential term. To employ the Thurmond Rule, that’s not until the end of this term, right? I think the best avenue is to nominate a centrist and a well-qualified one. The problem is that some of these Justices have such long paper trails with all of the decisions they’ve written [that] it takes a while to vet potential nominees. I can just imagine what they’re going through right now to find a well qualified candidate. The ideal situation is for President Obama to put forth someone whose integrity can’t be questioned. If that’s the case and the Senate is still obstructing, then there will be political consequences at the ballot box for the Senate.
None of the last 12 successful Supreme Court nominees waited longer than 100 days for a confirmation vote. President Obama does not leave office for 339 days. What repercussions will this standstill have on the political climate of the country?
We just haven’t seen it before because of the untimely death under an ideologically opposite Commander-in-Chief. It’s going to be interesting to see this play out because I don’t think there’s anything illegal of the Senate behavior to obstruct if they’re doing it within the rules of the Senate. Again, the only repercussion that can come from that is with public opinion of the Senate and in the ballot box.
The latest Republican argument is that it has been “standard practice” for 80 years not to confirm a Supreme Court nominee in an election year. Is this true?
No. But, to be fair, there should be an asterisk next to my answer. All of the previous nomination proceedings and vetting processes started before the last year. So the vacancy hasn’t happened in the final year, but Justices have been confirmed in the final year.
White House aides have stated that the President will pick a nominee “in due time,” and that he will select a sitting judge who has had bipartisan support in the past and could overcome the Republican opposition. Do you have any hypotheses about whom Obama will select?
I don’t. I think there are always a lot of names thrown out there. The most intriguing one to me is Sri Srinivasan. He’s an Indian-American and he is on the D.C. Circuit. The D.C. Circuit is a finishing school for the Supreme Court. If you look at Supreme Court Justices who also served on the D.C. Circuit, you’ll be astounded at the number. That’s why when there’s an empty seat there, filling those vacancies are often hotly contested, too, because they see it as a stepping-stone to the Supreme Court. So if you had to classify him, he is mildly liberal but relatively moderate. The Senate not so long ago confirmed him by 97-0 and he has clerked for conservative Republican Justice Sandra Day O’Connor. So if you’re looking for someone who has a bipartisan mind, there you have it. He seems to be the perfect solution, but then again I haven’t done an exhaustive search. His credentials are spotless.
Senators have the choice to vote yes or no to any nominee, as well as the option to refrain from voting at all. Do you believe that choosing not to vote is a disservice to Americans who value the democratic ideals of this country?
I think that ‘s a fair statement. For high-profile decisions, such as this, the folks who elected their representative deserve to see some sort of behavior in Washington, D.C.