The Supreme Court of the United States (or ‘SCOTUS’ as it is commonly known) is the highest court in its land. Its membership of 9 Justices are each individually nominated by the sitting President and confirmed by the Senate. Once in place, SCOTUS Justices enjoy life tenure, pre-eminent jurisdiction over federal courts and state court cases and a generous salary to deter bribery and keep their cupboards full.
The Supreme Court’s members each have a single vote (including the Chief Justice). These votes have been used to determine the result of some landmark cases such as Brown versus Board of Education (ending racial segregation in schools), Roe versus Wade (legalising abortion) and more recently, Obergefell versus Hodges (legalising same-sex marriage). All have changed the course of America’s history and influenced the rest of the modern world, which is why it is such a big deal when one of nine towering Justices relinquishes their position.
The recent death of Supreme Court Justice Antonin Scalia added to the list of those who have lived and died by the Constitution, and who are often not easy to replace.
When a vacancy arises, it must be filled. The Supreme Court cannot function forever with an even-numbered membership, simply due to the reason that frequent tied votes would erode its functionality (especially when so many decisions are made on the margin).
But as the presidential election draws closer each day, it seems that apart from Obama (who is keen to cement his place in history by joining the 18 presidents who appointed more than two Justices) and his minority liberal wing (who would like to have a majority somewhere), no one is in a rush to fill Scalia’s place.
If Obama does get to appoint a third Justice, it would not be unusual. Since 1900, there have been 8 Supreme Court nominations during an election year, 6 of which were confirmed. However, the key statistic being that of these 6 confirmations, 5 were confirmed by a Senate controlled by the President’s party. The fact that the Senate is currently controlled by the Republicans presents a tremendous hurdle for Obama to overcome if he wishes for his nomination to be confirmed.
Adding more uncertainty to the nomination is the significance of Scalia’s seat. Before his death, the balance in the Court was weighted towards a strict conservative approach, with 5 places held by justices nominated by Republican presidents, and 4 by Democrat presidents. Scalia’s death means there is an even split of 4-4 between liberal and conservative judges. The judge that fills this vacancy will give the edge to either a conservative or liberal approach to future considerations and act as the swing vote in many matters—a considerably important notion that will impact the future of America until the positions shift.
Furthermore, with less than nine months to the election, Obama’s time is running out. While the average time taken for a nomination to be confirmed is 25 days, the Senate has been known to take as long as 125 days which was for Justice Brandeis who was confirmed by a Democrat controlled Senate and nominated by Democratic President Woodrow Wilson. A sensible amount of time will have to be taken before selecting the correct candidate, it will take time for them to be considered by the Senate and then there is filibustering opportunities during the vote (a time when Senators can speak for as long as they wish in order to delay the workings of the Senate). If the nomination fails, then these steps will have to be repeated; meaning that those remaining days will be eaten away.
Senate Majority Leader and Republican, Mitch McConnell has openly stated that the “vacancy should not be filled until we have a new president,” that “the American people should have a voice in the selection of their next Supreme Court Justice.” So when Obama makes his nomination, there will undoubtedly be a strong partisan response to restrict its progress in the Senate, and this is unlikely to change unless the Democrats regain control of the Senate in November.
Now this is not to say that the Supreme Court place will remain vacant for over a year. It would be dangerous to set a precedent like that, and as Senate Minority Leader Harry Reid has pointed out, it is unheard of in recent history. But the fact of the matter is that if Scalia’s place is to be filled, then the Senate will have to agree on who Obama nominates; Obama may play it safe in favour of a crossing one thing off his legacy list, but as a democratic President who has seen his flagship Obamacare programme (among many other things) halted by a narrow Republican-dominated Supreme Court, it is more likely that it is going to be someone who the Republicans do not approve of and who they consequently strike down. It is therefore unlikely that Scalia’s seat will be filled for a long period of time.
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