The Fight Over Scalia’s Successor
Scalia was the embodiment of conservative opposition to the liberal jurisprudence of the ’60s and ’70s, and that opposition was the glue that held the conservative movement together over the last 40 years, as the end of the Cold War and the waning electoral power of welfare liberalism attenuated other sources of unity.
Scalia was one of the great conservative jurists of the last century, and he was responsible for shaping conservative jurisprudence during his thirty years on the Court. He was frequently a dissenter on the Court, and he delighted in the role. He acknowledged a few years ago that he hadn’t won many victories during his tenure, but he nonetheless had a considerable and lasting influence on the Court and its decisions. The Post‘s obituary gives an example of this:
It is hard to overstate Justice Scalia’s effect on the modern court. Upon his arrival, staid oral arguments before the justices became jousting matches, with Justice Scalia aggressively questioning counsel with whom he disagreed, challenging his colleagues and often dominating the sessions.
Scalia was one of the most important members of the Court in my lifetime, and both the Court and the country have lost a great public servant. No matter who ends up succeeding him, it is very unlikely to be someone with his particular combination of erudition, pugnacity, and wit.
The fight over Scalia’s successor seems certain to be one of the most contentious confirmation battles in decades. Obama has said he will choose a nominee, and I don’t envy the person who accepts the offer, since the nomination seems doomed to go nowhere. Senate Republicans appear determined to oppose any nominee that Obama selects regardless of who it is, and the Republican presidential candidates are unanimous that the “next president” should be the one to fill the vacancy. Now that the Senate leadership has declared its opposition to a new nominee before anyone has been chosen, it seems likely that the Senate won’t even go through the motions of a confirmation process this year.
The automatic rejection of a new nominee will leave the Court with a vacancy for a year. While there have been longer vacancies, keeping a vacancy open when it could be filled impairs the functioning of the Court unnecessarily. If the idea of letting the sitting president fill a vacancy on the Court is so horrifying, that should make us question the wisdom of lifetime appointments to the Court. It should worry us that the Court is so powerful that any change in its composition is viewed with such alarm. Another Obama appointment would shift the balance of the Court for a time, but it probably isn’t going to stay that way for long. Conservatives might also consider that Republican appointees have made up the majority of the Court for decades, and it still hasn’t done many conservative causes much good.
Senate Republicans are also taking a big gamble insisting that they won’t approve Obama’s nominee, since they may find in a year’s time that they are out of the majority and another Democrat occupies the White House. In their very public and immediate opposition to even considering Obama’s nominee, Senate Republicans may be unwittingly aiding the other party in the presidential election and in a number of close Senate races that they have to win to retain the majority.