On February 13, 2016 Antonin Scalia, Justice of the Supreme Court of the United States (SCOTUS) died. He was 79. Instead of reacting with sympathy for Scalia’s family, Republicans began bemoaning the fact that President Obama would most likely choose his replacement before the year is out.
Antonin Scalia was conservative and an influential member of the court. He was anti-abortion, pro death penalty, and against minority rights and affirmative action. His death has resulted in an even four to four ideological split between conservative judges and liberal ones. Obama said that he would soon name Scalia’s successor and the Republicans are having what could only be called a tantrum.
Republicans are demanding that Scalia’s replacement be appointed after the end of Obama’s term in January 2017. Presidential candidate and wealthy racist misogynist Donald Trump has been the most vocal, all but begging the US Senate to “delay, delay, delay”. The fear is that whoever Obama names will be liberal, effectively tipping the ideological leanings of SCOTUS in favor of the Democrats.
Article 2, section 2 of the US Constitution says that the president has the power to appoint judges of the Supreme Court with the advice and consent of the Senate.
The way it works is: the president nominates someone to the Supreme Court, and it’s up to the Senate to confirm the nomination. If a majority votes in favor of the new judge, that judge becomes a member of SCOTUS. If the Senate votes against, the president will have to choose someone else.
Republicans want the Senate to delay the nomination, but the legal foundation for their arguments is a weak one.
Republican Senators are pushing for delays on the basis of the Thurmond Rule.
The Thurmond rule is not actually a law. It’s an informal rule that’s never been entrenched in US law. It originated in the 1960s with segregationist Senator Strom Thurmond who was trying to punish then-President Lyndon B. Johnson for passing the US Civil Rights Act by opposing Johnson’s candidate for SCOTUS. The rule states that a president cannot name a Supreme Court Judge in the last six months of his presidency.
The problem with using this rule is that the Republicans don’t seem to have checked their calendars.
As per the rules regarding term limits, Obama’s presidency ends on January 20, 2017. That means that even if the Thurmond Rule were an enforceable law, it would only apply as of July 20, 2016. Presidential decisions often take a long time but it’s likely that Obama will name a successor before then.
In its entire history the US Supreme Court has never gone more than six months without the full number of judges. Although SCOTUS consists of nine judges, a quorum of six is required to hear a case. Judges are human beings and the court receives between seven and eight thousand applications for appeals each year. An empty seat on a court with such a high case load simply isn’t practical.
Let’s look quickly at some of the most likely candidates for Scalia’s replacement:
- Sri Srinavasan, age 49, is an Indian born circuit judge for the US Court of Appeals. A graduate of Stanford law school, he’s an ex clerk for former Supreme Court justice Sandra Day O’Connor and the first appellate court judge to swear his oath on the Baghavad Gita, a fact that will most likely bother Bible thumping Republicans. He was named to his current position by Obama in 2013 and was confirmed 97-0 by the largely Republican Senate.
- Patricia Ann Millet, age 52, is also a US Court of Appeals judge. A graduate of Harvard Law School Magna Cum Laude, she was appointed to her current position by Obama in 2013. As a lawyer she argued 32 cases before SCOTUS. She is also an occasional blogger for SCOTUS’ blog and an advocate for military families, something that could endear her to Republicans.
- Jacqueline Hong-Ngoc Nguyen, age 50, is a Vietnamese born US Court of Appeals judge. Her father was a major in the South Vietnamese army who helped the Americans during the Vietnam War. She graduated with a Juris Doctor from UCLA and during her years in private practice worked mainly on commercial disputes, intellectual property, and construction defect cases. She was recommended for the appeals court by Democratic Senator Diane Feinstein and was appointed by Obama in 2009. Her nomination was also confirmed by the Senate 97-0.
- Paul J Watford, age 49 is an African American US Court of Appeals judge. A graduate of UCLA law school, he is a former clerk for SCOTUS justice Ruth Bader Ginsberg. He was appointed to his current position by the Senate 61-34. On SCOTUS’ blog, US appellate advocate Tom Goldstein named Watford as the most likely replacement for Scalia because he’d be a more moderate counterpoint to conservative justice Clarence Thomas.
- David Jeremiah Barron, age 48, is a first circuit judge and one of the only white males named by the experts as a possible replacement for Scalia. He is also one of the most controversial due to a legal memo he wrote justifying lethal drone strikes against American citizens suspected of terrorism.
Though nominations to any court should be about ability and dedication to the law, it is unfortunately politics that rules the day. The debate surrounding Scalia’s replacement has done nothing but highlight how much Republican legal philosophy is rooted in fear.
Scalia was their hero, a die-hard defender of the law in its purest, most literal form, even if judicial interpretation came at the expense of women, blacks, Hispanics, and LGBT people. His replacement might not be so ignorant of modern realities that require judges to interpret the law in a way that reflects society’s evolution and progress.
This includes the recognition that a rule is not a law unless it is voted on and passed by Congress and that the Senate is as bound by the law as anyone else.