Diary

Scalia and the Direction of the Court

The first issue to be discussed is whether Obama, in an election year, should nominate a replacement to Scalia.  This is a non-issue.  It is much too early in the election season for him not to name a replacement for Scalia.  The most recent example we have of anything nearly approximating this situation was Anthony Kennedy who assumed his seat on the Court in 1988.  However, he was the third nominee that season after Robert Bork was rejected by the Senate and Douglas Ginsburg withdrew his name from the nomination.  Those two factors together pushed the replacement for Lewis Powell into 1988, an election year.  There is no historical evidence to suggest a belief one way or another that Obama should not nominate a successor in an election year and plenty of evidence to suggest otherwise:

  • 1912- Taft nominates Mahlon Pitney
  • 1916- Wilson nominates Louis Brandeis
  • 1916- Wilson nominates John Clarke
  • 1932- Hoover nominates Benjamin Cardoza

What is left unclear is whether Obama would make a recess appointment.  The Senate is in recess until February 22nd and this makes it virtually impossible- timewise- for Obama to make such a move.  Even if he did and it passes constitutional muster, they could only serve until the end of the year.  Obama would be taking a gamble hoping a Democrat wins in November when they can then renominate the replacement.  However, last term the Court ruled that only the Senate could determine when they were in recess and that it had to last longer than three days.  Theoretically, Obama could wait until later in the year when the Senate will likely recess to allow members to campaign at home (those up for reelection).  McConnell can thwart that recess appointment by bringing in members to meet pro forma and acting minimally on anything.  It would appear unlikely that Obama will make a recess appointment because a Democratic victory in November is no sure bet.

Instead, Obama will likely nominate someone and attempt to have him confirmed before the summer so that they can at least begin the new 2016 term in October of this year.  The question at this point is timing.  Assume Obama nominates a replacement, the Senate takes up the appointment and they assume their position on the Court before the end of this term.  This scenario is highly unlikely, but if it happens, unless Chief Justice John Roberts says otherwise, everything proceeds as if nothing happened.  The replacement could participate in the case although they most likely would not.  It should be considered that when the Court reconvenes on February 22nd, there will be only eight Justices to hear the oral arguments.  Can a replacement participate in those cases if they did not hear oral argument?

Tradition says not, but nothing prevents a new Justice from doing so, unless the Chief Justice says otherwise.  A new Justice would have the briefs and transcripts of oral arguments to guide them, but their participation is highly unlikely.  Instead, one has to look at the remaining cases for oral argument and those decisions still pending.  The Court has already released 14 opinions and has 23 pending.  There are 10 cases slated for oral argument in February.  That puts a potential nominee out of at least 33 cases.  Assuming Obama could get a nominee confirmed before April, that would leave precious few cases for that nominee.  The only major case in April would be the immigration case.  So, we will likely not see a successor before April.

Therefore, considering the average time between a vacancy and a replacement assuming their position on the Court is about 120 days (four months), any nominee would likely not participate in any decisions this term.  That is good news and bad news because of the possibility of 4-4 decisions.  In those instances, the decision of the lower court would stand although they would not have the status of “precedent.”  Most likely, they would appear again before the Court in the next term possibly.

We could have expected 5-4 rulings in three major cases- the immigration case, the Texas abortion law case, and the contraception mandate case.  If so, then the ruling of the Fifth Circuit and the injunction against enforcement of Obama’s DACA executive order would remain in place.  With the abortion case out of Texas, the state would prevail and the contested provisions could be enforced.  And in the contraceptive mandate case, that mandate would remain in effect against religious organizations.  Other than the mandate case, that is the best scenario for outcomes from a conservative perspective.  Although they would likely reach the Court again next term, by then there may be a new Republican President who would rescind the DACA orders making the case moot by time it was litigated again at the Court, although the abortion case- since it did not involve the federal government- would proceed and with a liberal nominee replacing a conservative, the likely vote would be 5-4 sometime in 2017 striking down that law in Texas.

As for a replacement, it would seriously surprise this writer if Obama did not nominate Sri Srinivasan of the DC Circuit.  This is a traditional stepping stone to the Supreme Court and he sailed through Senate confirmation hearings and was unanimously approved 97-0.  I doubt he’d nominate Patricia Millette having already nominated two women previously.  Obama wants this nomination badly and the only question is how much political capital he is willing to expend getting his nominee on the Court.  This is a unique opportunity for the Republican leadership in the Senate to show some backbone and fight Obama tooth and nail.  Both Roberts and Kennedy are too much of conservative wild cards to rely upon.  Either way, it is important that the Senate gets this right by either delay (which really would not hurt anything) or outright rejection of a nominee (which could be risky in an election year and how that rejection is portrayed).

Putting off Senate confirmation hearings until after Memorial Day and dragging it through the summer would put the Supreme Court front and center as a major issue in the election in 2016.  With the possibility of two replacements by Obama’s successor, the stakes have been increased exponentially.