SCOTUS Without Scalia

Way back in 1986, President Reagan Reagan (aka Republican Jesus) nominated Antonin Scalia to fill the vacant seat on the Supreme Court after Chief Justice Warren Burger’s retirement was followed by Justice William Rehnquist’s “promotion” for lack of a better term. After mulling the nomination over for nearly 3 months, the Senate confirmed Scalia – by a unanimous vote.

The unopposed tally was surely not an indication that every Senator was on board with Scalia’s jurisprudence. It was a different time back then. When it came to confirming a Supreme Court Justice, the Senate customarily acknowledged that the president was capable of selecting a qualified person. My how times have changed.

It took all of a few hours for Republicans to turn one man’s death into a political rallying cry. The news that Justice Scalia had passed away was followed by Senate Republicans suggesting that there would be no confirmation hearings until the current president’s term has ended. Mind you, these statements all came before President Obama had even mentioned a name to fill the vacancy. In response, Obama has stated that it won’t be long before he sends his nomination to Congress – you know, because it’s his constitutional duty. Republicans love the Constitution until it clashes with their political agendas.

It’s certainly unfortunate how the recent vacancy on the Supreme Court came to pass but the sad circumstances that led to the open seat do not minimize the seriousness of its long and short term implications on the Court. Cases to be heard this year deal with abortion rights, immigration, contraception, and redistricting. Any case that was likely to be a 5-4 vote will now likely be 4-4 split decisions.

A tie vote essentially means that the Court never heard the case in the first place. The lower court’s ruling is upheld and no precedent is set. However, the actual effect on American lives as a result of split decisions in certain cases goes deeper than legal uncertainty. Split decisions may very well prolong unnecessary harm to groups of marginalized individuals searching for legal relief. The Court does have the option to set cases ending in tie votes to be re-argued. But that doesn’t help people seeking a ruling who are due justice. A judicial stalemate helps no one.

What, then, should the President do? Of course, there are many more than qualified candidates from whom Obama can choose – including federal appeals court judges who have already been confirmed by the Senate for those posts. The problem is that this Republican majority Senate is not interested in weighing any potential candidate on his or her merits. Rather, it will use every tactic at its disposal to make sure Obama is not afforded the choice.

The new talking point for Republicans to support this absurd line they’ve draw in the proverbial sand is that for the last 80 years it has been standard practice not to confirm any Supreme Court nominee in an election year. Well, that’s just blatantly false. Justice Anthony Kennedy – who was nominated by Republican Jesus – was confirmed by a Democratic Senate in 1988. It also directly flies in the face of Justice Scalia’s jurisprudence. Scalia interpreted the Constitution’s meaning as fixed at the time of enactment and the Constitution explicitly obligates a president to nominate Supreme Court justices – election year or not.

Senators certainly have the right to case a yes or no vote on any nominee from President Obama. But to deliberately abstain from voting for spite is an insult to our democracy and will only serve to widen the void of trust between American citizens and Congress.

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A lucky man. Also a lawyer. Classic oxymoron.

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