The political world found itself upside down this week with Saturday’s sudden passing of Justice Antonin Scalia. Suddenly, the election has become a referendum on both the executive and judicial branches of government. President Obama wields more power than most lame-duck presidents, and the future of the Senate hangs in the balance as republicans play another round of brinkmanship with the government. Amidst all this turmoil, why should the average citizen care about the Supreme Court? Aside from simple civic engagement, the impact is greater than it might appear at first glance.
To begin, we must examine the man who cast this issue into the spotlight. Justice Antonin Scalia was the most polarizing justice on the bench for the last three decades. Nominated by President Reagan in 1986, Scalia spent his career advocating for his philosophy of “originalism.” Originalism, he believed, meant that the Constitution should be interpreted exactly as how it was publicly understood at the time of its creation. It is not, as many claim, a living document that exists within the context of the current era but rather an unchanging text that should be interpreted only by the words on its pages. Conveniently, this philosophy allows for a conservative interpretation on the biggest issues facing the court.
But beyond his polarizing legal philosophy, he is remembered as a decent man by his peers. Fellow associate justice Ruth Bader Ginsberg counted him among her closest friends, even though they disagreed passionately about nearly every legal issue they confronted. Scalia also developed a close relationship with Obama appointee Elena Kagan, even taking her hunting several years ago.
Scalia’s absence will no doubt leave a void in the personal relationships formed among the select members of the high court. But the void extends beyond personal relationships to the functioning of the court as well. Without Scalia’s conservative vote, the court finds itself split 4-4 along philosophical lines. In most cases, the court will continue to function as usual since a majority opinion carries the same weight no matter how many justices sit on the court.
His absence opens up the additional possibility, however, of a tie vote. Although unlikely, a tie vote remains a serious possibility, especially given the politically-charged cases on the court’s docket. In the event of a tie, the lower court’s ruling is upheld, and the high court issues what is known as a per curiam opinion. Whereas a majority opinion sets precedent for the entire nation and future courts, a per curiam sets no precedent. Instead, the document briefly explains what the court thinks and ultimately leaves the issue open for a future court to set precedent with a majority opinion.
Aside from the logistical issues, Scalia’s death opens a whole new political can of worms. The constitution mandates that the president nominates justices, which the Senate then considers for confirmation. Following Scalia’s death, President Obama indicated his intent to nominate a candidate as soon as possible. Republicans in the Senate, however, contend that Obama should defer to his successor the job of nominating the candidate. Senate Majority Leader Mitch McConnell has also indicated that, if the president does indeed submit a nominee, the Senate will categorically refuse to consider the nominee.
Although this may, at first glance, appear another case of Republican obstructionism, there is in fact some historical precedent to their stance. A justice has not been successfully nominated in an election year since the Hoover administration. Justice Kennedy was nominated in 1987 and confirmed in 1988. So although he was confirmed in an election year, his nomination occurred the year prior. Republicans claim that the American people should, through the election process, indirectly determine the next nominee.
Of course, the historical record does not mandate the Republican position that nominees are a non-starter. I maintain that the president should exercise his constitutional right to nominate someone and that the Senate should hold confirmation hearings and give the nominee an up-or-down vote. President Obama’s election in 2012 gives him the prerogative to exercise his nomination power until the day he leaves office. While Republicans may argue that their 54-seat majority in the Senate is a mandate from the people, nominees deserve at least a fair hearing and a vote.
Nonetheless, Republicans have staked everything on preventing a successful confirmation before the election this fall. Indeed, their firm stance forces them to maintain that position until after we know the new composition of the Senate as well as a new president. The position is a huge gamble. Should they loose public support for their stance, Senate Republicans could see significant losses in the November elections. On the other hand, if they succeed, they will maintain the balance of political ideology on the Supreme Court. Senator McConnell may in fact be willing to sacrifice the Senate for the court. The Senate comes and goes, but the composition of the court lasts for decades due to lifetime appointments. The stakes are simply that high.
Given that all this occurs in an election year, of course the candidates have to chime in as well. From both sides of the aisle, they all support their party’s stance. It is unlikely that we will see any change in positions over the next few months. Obama will, undoubtedly, nominate someone to the court. The question will be whether Republicans will be able to risk ignoring it until the election. Unfortunately, it does not appear that the court nomination will bring together the fractured elements of our political system. Politics will always be politics.
Brian Hopkins is a Trinity senior. His column runs on alternate Wednesdays.
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