Not surprisingly, GOP members of Congress are already lined up to block any Supreme Court nominee President Obama might put forward in the wake of Judge Antonin Scalia’s passing. Since a series of conservative Administrations have stacked the U.S. Supreme Court with right-wing corporatist hacks, we’ve seen one disastrous decision after another come out of that august body – including Citizens United v. FEC and Exxon Shipping v. Baker (shielding the oil company from punitive damages). Of course, need we even mention Bush v. Gore? Senate Leader Mitch McConnell and Texas Senator Ted Cruz have publicly declared that they will block any attempt on President Obama’s part to restore some balance to the Supreme Court.
They’ll certainly go all out in order to prevent this scenario – but can they pull it off?
Preventing a lame-duck President from replacing a Supreme Court justice is not unheard of. Several SCOTUS nominations made during a President’s last year in office have been rejected by the Senate over the decades. The last time was in 1968, when President Lyndon Johnson nominated Homer Thornberry to replace Earl Warren when the latter was elevated to the seat of Chief Justice; that nomination was filibustered by a GOP senator from Michigan, Robert Griffith. Furthermore, although the President has an obligation under the Constitution to fill any vacancies in a “timely manner” and most replacements are named within a week of a judge’s departure, there have been 36 SCOTUS candidates in U.S. history that were never confirmed by the Senate, leaving extended vacancies on the Court.
Of immediate concern to Republicans are three high-profile cases: United States v. Texas et. al. which would uphold the right of states to sue the Obama Administration over its policy preventing them from enforcing their own immigration laws, Friedrich v. California Teachers Association, a decision that would essentially hamstring labor unions, and Little Sisters of the Poor Home for the Aged v. Burwell, one of several cases challenging a provision of the Affordable Care Act requiring employers to provide coverage for contraceptives for their workers not otherwise covered. Obviously, the GOP has a vested interest in these decisions, which prior to Justic Scalia’s passing, would surely have been decided on a 5-4 ruling in favor of the right-wing agenda. If a replacement is not found before these cases are decided, they may wind up in a tie. SCOTUS rulings that are tied with a 4-4 vote are not binding, meaning the lower court ruling in these cases would stand.
There is a lot riding on this next Supreme Court nomination. Presidential candidate Ted Cruz told ABC News, “Let the election decide it. If the Democrats want to replace this nominee, they need to win the election.” He insists that “a lame duck president in an election year is not going to be able to tip the balance of the Supreme Court.”
Really? Interestingly, President Ronald Reagan had little problem with it during his last year in office (despite Marco Rubio’s claims to the contrary). Senate Majority Leader Mitch McConnell loudly proclaimed that “the American people should have a voice in the selection of their next Supreme Court Justice, therefore, this vacancy should not be filled until we have a new president.” Aside from the fact that McConnell has never given a tinker’s damn about the American people, he suffers from a very poor memory. Just over 28 years ago – February 3rd, 1988, to be exact – Senator Mitch McConnell and every last one of his GOP colleagues voted to confirm Reagan’s last SCOTUS nomination: current Justice Anthony Kennedy.
McConnell is not alone in his memory lapse. Senate Judiciary Committee chair Senator Chuck Grassley, a Republican from Iowa, also stated authoritatively: “It’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.” Yet, he too voted to confirm Kennedy on that winter day, 28 years ago.
The Republican Congress is obviously hoping that they can delay selection of Scalia’s replacement until January 2017. By then, they believe they’ll have one of their own safely ensconced in the Oval Office. While that is a remote possibility, the greater likelihood is that President Obama, using his executive authority, will simply do an end-run around the Congress that has made his tenure in office a living hell, and make a recess appointment. Currently, the Senate is in recess until February 22nd – giving the President a little over a week to appoint the late Justice Scalia’s replacement. Another opportunity could present itself when Congress against goes into recess for ten days starting on March 21st.
Recess appointments to the SCOTUS are rare, but have happened twelve times over the course of U.S. history. Most recently, such an appointment was made by President Dwight D. Eisenhower in 1956. President Eisenhower appointed William J. Brennan, a progressive from New Jersey. It was a shrewd political move on Eisenhower’s part; his campaign advisers suggested that nominating a Roman Catholic from the nation’s northeastern region would help his chances at re-election.
Of course, even if President Obama does appoint Justice Scalia’s replacement, the Senate could still move to “disconfirm” his appointee. However, “disconfirmation” of a presidential appointee has never been attempted before. Furthermore, chances are good that the Democratic minority could block such a move by the GOP.
Right now, it’s up to President Obama. He’s got a short list of at least ten qualified candidates, and a petition is currently being circulated asking the President to consider an eleventh. It’s a historical opportunity to turn back the tide of right-wing corporatism that has infected our judiciary.
Don’t let us down, Mr. President.