How Obama Can Replace Scalia
by Benjamin Studebaker
Today Supreme Court Justice Antonin Scalia died unexpectedly in his sleep after participating in a quail hunt. I extend my sympathies to his family and to the conservative movement, which has lost one of its titans. Nevertheless, I am a political writer, and my role is to write about politics. So what are the political implications of Scalia’s death?
Scalia was politically perhaps the most conservative justice on the court, though he had softened a bit with age. Using Martin-Quinn scores to measure justices’ left/right leanings (on the chart, left is down, right is up), Scalia in his later years was more conservative than Roberts or Kennedy, but not quite as far to the right as Alito or Thomas:
Nevertheless, Scalia has taken a variety of quite extreme stances over the years. Here are just a few:
- In the 1992 Planned Parenthood v. Casey case, Scalia dissented, arguing that the constitution does not protect the right to an abortion.
- In 2000, his deciding vote in the 5-4 Bush v. Gore decision blocked a Florida recount that might have given the presidency to Al Gore.
- In 2003, he dissented in Lawrence v. Texas, arguing that states were entitled to criminalize sodomy if they so chose.
- In 2010, his deciding vote in the 5-4 Citizens United v. FEC case opened the door to a new influx of money into American politics in the form of super PACs.
- In 2014, he dissented in King v. Burwell, arguing that millions of Americans should have their health insurance revoked over a pedantic reading of the Affordable Care Act.
- In 2015, he dissented in Obergefell v. Hodges, arguing that states are entitled to deny LGBTs marriage rights.
President Obama does not leave office until January 20. This means that Obama has 11 months to nominate a new Supreme Court justice and get that nominee confirmed. If you’re wondering whether this gives him enough time, the answer is probably yes. Since 2000, it has never taken a president more than 6 months from the date of retirement or death to get a justice replaced, and the last justice to die in office–William Rehnquist–was replaced in just one month:
However, all of these justices were replaced with the president’s party controlling a majority in the senate. Supreme Court nominees require 50 votes. While it remains technically legal for a Supreme Court nominee to be filibustered (in which case 60 votes are required to override), no Supreme Court nominee has ever been subject to a filibuster.
Currently the democrats have 44 seats in the senate, with 2 independents that both caucus with the democrats. This means they can rely on 46 votes. This means they would need 4 more votes–if they can get to 50, Vice President Biden can break a tie. Barack Obama’s past court nominees have each received a few republican senate votes. Elena Kagan got the support of 5 republicans, while Sonia Sotomayor got the support of 9. However only three of those republicans remain in the senate today. They are:
- Lindsey Graham (R-SC), who recently withdrew from the presidential race and voted to confirm both Sotomayor and Kagan.
- Susan Collins (R-ME), who voted to confirm both Sotomayor and Kagan.
- Lamar Alexander (R-TN), who voted to confirm Sotomayor but opposed Kagan.
All three of these republicans were re-elected in 2014 and do not have to fear challenges from the right in primaries until 2020. Collins is said to be considering a run for governor of Maine in 2018. Maine has been a blue state in presidential elections since 1988 and Collins has a reputation for being a moderate. In 2014 she was re-elected with 68% of the vote. It is reasonably likely that Obama could potentially get the support of these three. If so, that would bring his vote total up to 49. He would need one more republican.
Who are the most likely republicans to defect? I’ve drawn up a short list of republicans who have developed relatively moderate reputations since 2010:
- Kelly Ayotte (R-NH) was elected in 2010. Ayotte is up for re-election this year, but she’s running in the state of New Hampshire, which has been blue in presidential elections since 2000. That said, she overcame a contentious primary in 2010 against a Tea Party rival, and may be unwilling to risk another challenge.
- Mark Kirk (R-IL) was also elected in 2010. He has also worked across the aisle on environmental policy. He will be campaigning for re-election in Barack Obama’s home state, which has been blue since 1988. In 2010 he won a narrow victory over his democratic opponent, and since he’s running for re-election in a presidential year when Illinois democrats are likely to come out in force for their nominee, this might be a good opportunity for him to endear himself to them.
- Lisa Murkowski (R-AK) was re-elected in 2010 by write-in vote after her party rejected her in favor of a Tea Party candidate in the primaries. This has made her fearless and much more willing to deviate from the party line.
- Dean Heller (R-NV) was elected in 2012. Like Kirk, he won a narrow victory over a democrat and this forces him to play to the middle. Unlike Kirk, he is not up for re-election until 2018 and will have more flexibility to vote as he pleases.
If Obama can get Graham, Collins, and Alexander on side, he needs just one more of these four.
However, politics is changing and becoming more polarized. If things work the way they have historically, Obama has a strong chance of getting a reasonably left leaning nominee narrowly confirmed. Given that we are dealing with the senate rather than the house, there’s a good chance Obama can find the votes. But if the republicans are willing to violate hundreds of years of precedent and obstruct a nominee with a filibuster, or if senate republicans are much less willing to cooperate with the president than they were in 2010, things could remain unresolved for some time. That said, it would be a risky move for senate republicans, because a protracted fight could be used by the democratic nominee in the 2016 presidential race to highlight republican obstructionism. In the meantime, any Supreme Court decisions that are 4-4 result in no ruling being issued–the lower court’s rulings are instead upheld.
Benjamin Studebaker 
Recess appointment?
There have been no recess appointments to the court since the 1950’s. In 1960, the senate passed a resolution strongly condemning recess appointments in this context. In the 00’s, senate democrats held pro forma sessions to block Bush from doing it, and presumably republicans could do that again.
However, if Obama did manage it, the recess appointee would remain in office only until the end of the next senate session, at which point the justice would need to be renominated by Obama’s successor and confirmed by the senate.
This Congress has been absolutely appalling in their clear vendetta against Obama. If they filibuster, then I think the thing to do is recess appointment and let the next president sort it out.
The Senate is in REcess until Tuesday – they have already stated their intent to filibuster any nomination. I want people to ask President Obama to appoint a SCOTUS member tomorrow – President’s Day. Please sign this petition and share it. I need 99920 sigs now..
https://petitions.whitehouse.gov/petition/appoint-supreme-court-justice-presidents-day-while-senate-recess
Individuals like Cruz have said they will try to filibuster, but it remains to be seen if said filibuster will stand up. Even if McConnell gets behind the tactic, many individual senators may have strong reasons to consider defecting.
Find a pragmatic judge who will use common sense and work for the American people instead of their ideological belief
One person’s common sense is another person’s radical ideology, and vice versa.
Im quite interested in this process playing out in front of the people for the election. We will have concrete present day examples of the obstruction the President has had to deal with for the last 7 years. It can only sharpen the voters perpective.
Yep–and don’t think there aren’t establishment republicans in the senate thinking “let them have this one so we can get the next two”. Kennedy is 79 and Ginsberg is 82.
I think a filibuster attempt is a given. What you are missing is that Obama had 60 or more votes in the bag for both Kagan and Sotomayor. Reid and Obama made sure that the vote was filibuster proof before it took place. With Rubio and Cruz in the Senate and running for President, they will try to filibuster, and Obama will need 14 Republican votes, not 4, to overcome it.
There is a way forward. Ted Cruz makes the filibuster all about him, the other Senate Republicans agree to vote to end the filibuster because they can’t stand the guy.
I think the question becomes: how much of a campaign issue would it be for the handful of Republican Senators in blue/purple states to vote against any nominee. One of the implications of the growing polarization in recent decades is that Senators (and MCs) don’t really internalize the costs of behaving opportunistically that makes the party look bad to the general population. Both Senate and House races have become less competitive – making primary challenges more of a concern than the general election.
I can’t recall a senate election in recent memory in which SC nomination voting was a primary voting issue – but this is a pretty anomalous situation, so who knows what will happen.
One thing that helps is that senate seats cannot be Gerrymandered, either deliberately or by accident (because senators represent the entire state), so if you’re someone like Mark Kirk in Illinois, you still really do have to worry about Chicago voters more than primary challengers.
Sure, but the political science research on gerrymandering generally downplays its effect (only gave the Republicans a handful of seats) – most of the decline in competition is due to other factors (self sorting of voters, both ideologically/partisan and geographically). Senate races have become less competitive over the same time frame as House races have (although to a lesser extent).
http://themonkeycage.org/2012/11/not-gerrymandering-but-districting-more-evidence-on-how-democrats-won-the-popular-vote-but-lost-the-congress/
That being said, you’re right that there are a handful of Republican Senators in blue/purple states in which obstructing a nominee would hurt their reelection chances. I guess the question is whether they would get blamed for the behavior of Republicans as a whole – or if their individual vote can save them from blame (assuming voters take the SC nominee battle into account when voting). The calculation McConnell needs to make is whether it’s worth risking the Senate majority/presidency going forward to obstruct the nominee. I’m questioning how much voters will blame Republicans for the mess – most voters who don’t follow elections that closely (who are more likely to be undecided) will probably shrug their shoulders and chalk it up to ‘politics as usual.’
I don’t disagree on Gerrymandering–the research gives little credence to deliberate Gerrymandering as a means of capturing the house (though there are some indications that the tendency for democrats to live in cities results in some “natural” Gerrymandering that may be more consequential: http://web.stanford.edu/~jrodden/wp/florida.pdf).
What Gerrymandering does that is important is that it helps both incumbent house democrats and incumbent house republicans retain their seats. This reduces the need to compromise or placate constituents who favor the other party in comparison with senators in blue/purple states.
In the past, government shutdowns have helped the dems:
http://www.gallup.com/poll/165317/republican-party-favorability-sinks-record-low.aspx
I think this Supreme Court nomination will be similarly high profile (especially with republicans immediately announcing their opposition very loudly). But perhaps not so much…
I don’t disagree with your rationale – but I’m less optimistic that Republicans in blue/purple states think that it will cost them the election/majority: http://www.nytimes.com/2016/02/16/us/politics/more-republicans-say-theyll-block-supreme-court-nomination.html?_r=0
Portman (OH) and Toomey (PA) both seem to be pretty adamantly behind McConnell on blocking the eventual nominee. It looks like Collins (ME) is the only one even considering is defecting so far (and she’s not up for reelection in ’16). Just because something is rationale for them to do doesn’t mean they are going to do it. They might be dealing with some cognitive dissonance in terms of how much confidence they have that voters are behind them if they block the nominee.
Oh, you’re absolutely right that they may not act rationally–in which case they will be damaged in November. I do think there will be arguments and internal divisions behind closed doors about this. Different GOP senators will prefer different strategies.
Why not wait until a new president is elected? Don’t you have confidence that a Hil or Bern will be elected!
Why not let Obama appoint his replacement, since that is his Constitutional duty!
Why should the left take that risk unnecessarily? That would be a political giveaway with no return value.
It’s unconstitutional to wait. It is the job of the President, and the Senate to replace a Supreme Court Justice in a timely manor upon their retirement or death. The SCOTUS *must* have 9 Justices to function as intended in the constitution.
In Judiciary Act of 1789, the Court was made to consist of a Chief Justice and five Associate Justices. The number was gradually increased until it reached a total of ten under the act of March 3, 1863. As one of the Reconstruction Congress’ restrictions on President Andrew Johnson, the number was reduced to seven as vacancies should occur. The number actually never fell below eight before the end of Johnson’s term, and Congress thereupon made the number nine. https://www.law.cornell.edu/anncon/html/art3frag1_user.html#art3_hd4
Yeah, congress is permitted to alter the number of justices through legislation, though in today’s political climate this would go over very poorly with the public. In 1937, FDR tried to get legislation passed to appoint 6 new justices (thereby allowing him to pack the court). Despite FDR’s massive popularity, this overt attempt to politicize the court was not looked upon favorably by the public and ultimately failed.
I would love to here your thoughts on the President nominating himself, to replace justice Scalia?? He as a former Senator, 2 term President, and not to mention a Constructional Scholar/ Professor. Is possibly the most qualified person on the planet to be a Supreme Court Justice. Not to mention the confirmation hearings to end all Confirmation Hearings….. Would the Republican Senators really want the butt- kicking (for lack of a better expurlative ) that the President would put on the Committee.
Obama is definitely qualified to be on the court, but if he were to nominate himself he’d have to resign the presidency to move over to the court. I also think he’d have a hard time getting confirmed by the republicans in the senate, as a sitting president self-nominating would be viewed as highly unusual and self-aggrandizing.
If I were Clinton or Sanders, I’d consider nominating him if a seat opens up in future. Clinton and Sanders could and should suggest that if the republicans filibuster or otherwise refuse to confirm Obama’s nominees before his term is up, they will nominate Obama in 2017 if elected.
[…] Assuming the Senate did agree to consider Obama’s candidate, though, there’s no promise that things would go well. According to the rules as they now exist, Obama’s candidate would need to get 50 votes. [At 50 votes, Vice President Biden could step in and break the tie.] And, if the Republicans wanted, they could filibuster, which would raise the bar to 60 votes. [While legal, no Supreme Court nominee has ever been filibustered.] Given that the Democrats currently only have 46 votes in the Senate (there are 44 Democrats and 2 Independents that caucus with the Democrats), they would need 4 Republicans to join them, and for there not to be a filibuster, in order to get Obama’s nominee on the bench… The following analysis is from Benjamin Studebaker. […]
A couple of things here – first of all, there should be no issue with the filibuster. The filibuster is a tool of the *minority* to block action in the Senate. Republicans are in the majority. What is needed is not 51 votes in the Senate – that would certainly be needed down the road – but rather enough votes in the judiciary committee to release the nomination for a floor vote. My bottom line – if the Senate GOP doesn’t want to act on the nomination, it won’t have to.
Tying up a Supreme Court nominee in committee indefinitely would be even more obstructionist and unusual than filibustering it or voting it down, and would go over even worse. Especially if the president nominates someone who has previously been confirmed to an appellate court rather easily.
[…] And I’m not the only one: […]
Ben,
I think it’s a big mistake to call Scalia a “conservative.” He’s a fascist, a nihilist, and a reactionary. For too long we’ve allowed right wing nut jobs to fly under the banner of ‘conservative,’ which affords them a legitimacy in our political culture that they do not deserve.
Depends on how we understand “conservative”. As I see it, there are three ways to understand the term:
1. Supports change, but believes it should be very gradual, skeptical of revolutions and rapid reforms (e.g. Burke)
2. Opposes change and acts as an obstacle to the left (e.g. many conservatives during the interwar and postwar periods)
3. Supports change, but wants to imitate the past (Reagan/Thatcher conservatism)
3’s are both conservative and reactionary. Scalia is arguably a 3, though some might charitably try to make him out to be a 2.
3’s can be fascist, but only if they’re also authoritarians. I don’t think Scalia was an authoritarian, so I don’t think he was a fascist.
Nihilists disavow morality completely–nihilism is inconsistent with all normative positions (and indeed with action in general–it is impossible to act as a nihilist would because a nihilist can recognize no reason for action or inaction).
Personally, rather than deny 3’s the conservative label, I prefer to use the fact that 3’s self-identify as conservative to emphasize that conservatism is tied too closely with reactionary attitudes and politics.
One of the most succinct and articulate posts I’ve ever found discussing the American definition of “conservatism’ with respect to nihilism.
*quiet applause*
I would describe Scalia as a mafioso fascist. More akin to the paternalistic male hierarchy of the Roman Catholic Church and traditional Mafiosi. Just because someone comes across as having a conservative moral value system, it does not follow that his is not nihilistic. “A dagger, like a serpent or a Borgia or a sociopathic politician) often changes direction with opportunity.” He was an American capitalist first and foremost. A political operative in an old boy network. That is were his conservatism ends. He was radical!
I would describe Scalia as a mafioso fascist. More akin to the paternalistic male hierarchy of the Roman Catholic Church and traditional Mafiosi. Just because someone comes across as having a conservative moral value system, it does not follow that his is not nihilistic. “A dagger, like a serpent or a Borgia or a sociopathic politician often changes direction with opportunity.” He was an American capitalist first and foremost. A political operative in an old boy network. That is where his conservatism ends. He was radical! Good work Mr. Studebaker.
Ben — \\//
[…] any nominee would be confirmed without a filibuster-proof 60 vote majority or, at the very least, at least 4 Republican votes. This means that any Obama nominee would either need to be a political stunt or a more moderate […]
Ben,
While I am a Hillary supporter, I’ve been wondering how Bernie is going to mobilize his millions as part of his revolution to change America. It will be exceedingly difficult and I actually believe quite impossible — particularly in today’s polarized environment — as many have tried before with various grassroots movements on many issues.
However, it occurs to me that if there has ever been a time to organize a citizens movement to demonstrate the “power of the people,” filling the vacancy left by Scalia is it. Hopefully, some group with broad credibility, or perhaps Bernie, will launch such an effort. It is a wonderful opportunity because it can be focused like a laser on a couple dozen Republican Senators who as you point out are elected statewide and not impacted by gerrymandering. It should be powerful to the point that the targeted Senators should be warned they will not be reelected if they do not confirm President Obama’s nominee.
It should be noted that however difficult, this effort would be among the easiest to carry out and achieve the greatest impact, relative to other issues such as breaking up the big banks, raising the minimum wage, gun control, etc.
Love your blog, your writings and your intellect — even though we share some differences; mostly on neoliberalism. I’m more of a pragmatic Democrat who believes there are some major self-inflected wounds (which can be fixed) in the democratic infrastructure that completely distort modern day democracy and have lead to the bipartisan public perception that the government is broken — e.g. campaign financing & Citizens United; cloture & filibuster rules in the Senate; the “Hastert” rule in the House; and gerrymandering. I will be following you closely. Thanks for your efforts.
Jeff
Ben,
Off topic.
I’m English. The difficulty in our country is for the average person like myself I can’t rely on any media outlets because every newspaper / website is either left wing or right wing. This is the reason why your viral article on David Cameron was truly superb. You used non sugar-coated statistics. Something I never see when it comes to politics in this country.
I have the same frustration with the impending EU referendum which is all that is in the news at the minute. Each article I read is either for or against and drastically biased that way. Here’s the big question to you…which way would you vote?
I hope and sense this could be your next major viral article in my country.
You are the third person to ask me about this in the last 24 hours. Shortly before the referendum, I will probably come out with a full post. In the meantime, I’ll tell you that currently my view is that the UK should stay in the EU. For three key reasons:
1. As currently structured, the common market is good for rich European countries (albeit not good for Portugal, Spain, Italy, or Greece).
2. Immigrants from the EU are an economic asset, as much as people like to deny this nowadays.
3. The EU is essential if European countries are going to have any real power in world affairs.
That said, I think the EU eventually needs to be restructured as a federal system so that it benefits all member states. Right now the most powerful state (Germany) overdominates at the expense of the periphery, and if that doesn’t change eventually the EU will either drive out the periphery or cripple and impoverish those countries in the long-term.
Thank you for your reply.
Great, thanks for clarifying. I am thinking along the same lines but I guess my lines have been more blurred by the propaganda we are fed. Your concise summary is welcomed.
I do tire of people, whether it be friends, politicians or journalists saying how we need to ‘break free’ .’We have the 5th best economy in the world (GDP) – the world is our oyster’ without EU constraints and the fees that come with it. Another one is ‘lets control who is coming into our country’. Its as if people believe overnight we will become the European China of this world. Peoples perceptions in this country are skewed by what we are fed. Much like the general election, to which you addressed perfectly in your viral article, many people have great misconceptions over certain issues. I fear this will have a direct influence on the outcome of the EU Referendum.
I look forward to reading your article nearer the time. Thanks Ben
[…] And I’m not the only one: […]
[…] will remember Collins, Kirk, and Ayotte–these were three of the target swings I listed last month. If Obama were to get Garland through committee, he needs only 4 swing senators to get 50 votes for […]
[…] occasion I wrote one of the most mistaken pieces I’ve ever published on this site: “How Obama Can Replace Scalia“. In that piece, I argued that because previous Supreme Court justices had been replaced in […]