Supreme Court Vacancy Ignites Political Firestorm

Supreme Court Vacancy Ignites Political Firestorm
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A new and uncharted battle in the 2016 presidential race will be fought in Washington this year. President Obama and Senate Republicans set the stage for an unusual, election-year clash between the branches Saturday following the death of conservative and colorful Supreme Court Justice Antonin Scalia.

The president, in remarks delivered from California, commended Scalia, who died in Texas of natural causes at age 79, as a “brilliant legal mind,” dedicated public servant, and the son of “an Italian immigrant family.”

The president said he would “in due time” nominate someone to fill the vacancy, a pledge that ensured new battles with Senate Republicans, who argued in statements and interviews that a confirmation process for the nation’s highest court should not take place until 2017.

“There will be plenty of time for … the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote,” Obama said during a hastily organized public appearance after finishing a round of golf with friends. The president was traveling on the West Coast to raise money for Democrats and is preparing to host a California summit next week among leaders from Southeast Asian nations.

According to White House spokesman Eric Schultz, the president spoke Saturday evening with the Eugene Scalia, one of the justice’s nine children, “to pass along condolences to the entire Scalia family on the passing of his father. The President extended his sympathies on behalf of the First Family and the country.”

Obama and Senate Democrats, joined by the Democratic presidential candidates, argued the Constitution compels a president to name a successor. In 2009, Obama nominated Sonia Sotomayor to the court, and she was confirmed 73 days later by a vote of 68-31. In 2010, he selected Elena Kagan to join the court, and the Senate confirmed her 88 days later by a vote of 63-37.

But Senate Majority Leader Mitch McConnell lost no time in suggesting the electorate has “a voice in the selection of their next Supreme Court justice,” through the ballot box. “This vacancy should not be filled until we have a new president,” he said in a statement commending Scalia as “a giant of American jurisprudence.”

His counterpart, Senate Minority Leader Harry Reid, said the Senate has a “responsibility” to fill the seat. In a statement, he said that “failing to fill this vacancy would be a shameful abdication” of Senate duties and “unprecedented in recent years.”

The impasse guarantees that three branches of government are now in flux heading into next year. And the chances of Obama getting a third Supreme Court pick through the upper chamber in his final year appeared slim, according to legal and congressional analysts. The face-off is likely to leave an eight-member court for a year or longer, barring additional vacancies.

During a supercharged presidential contest in which voters are drawn to unconventional candidates to lead the country, an open seat on the high court promises to inflame partisan passions about abortion and other social issues, as well as contested assessments of Obama’s use of executive and regulatory authority to advance immigration, health care, climate change and other reforms.

Both parties are expected to point to the Supreme Court stakes to draw contrasts between them and to solicit contributions and drive voter turnout in November.

In fact, the court vacancy became the first question during Saturday night’s GOP presidential debate broadcast by CBS News minutes after Obama spoke. Donald Trump assailed Sen. Ted Cruz for commending the nomination of Chief Justice John Roberts, who twice affirmed the constitutionality of the Affordable Care Act, which GOP lawmakers have sought to repeal during more than five dozen votes.

Wearing a sport jacket and open-collared shirt and reading from prepared text, the president said the need in a democracy to keep nine justices on a functioning Supreme Court is “bigger than any one party.”

Hillary Clinton echoed that argument in a written statement. “The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons,” she wrote Saturday night. The Democratic candidate, campaigning in Nevada, said a lengthy vacancy on the court would “dishonor our Constitution.”

At a Feb. 4 town-hall event with Sen. Bernie Sanders, broadcast by CNN, Clinton demonstrated how motivating the conservative-dominated Supreme Court is among liberals who seek to hold the White House in order to reshape its ideological bent. The two Democratic contenders differed over the federal death penalty and what the Supreme Court should decide about capital punishment, and Clinton noted she has “a bunch of litmus tests” for nominees to the court, if elected president.

“I'm looking for people who are rooted in the real world, who know that part of the genius of our system, both economic and government, is this balance of power,” the former New York senator said. “If it gets too far out of whack, so that business has too much power, any branch of the government has too much power, the delicate balance that makes up our political system and the broad-based prosperity we should be working for in our economy is worse off for it. So I have very strong feelings about what I'll be looking for if I am given the honor of appointing somebody to the Supreme Court,” Clinton continued.

Sanders, in a statement offering condolences to Scalia’s family, sidestepped the face-off about filling a vacancy, which promises to impact him as both a candidate and a sitting senator from Vermont. “While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court,” he said Saturday.

Senate Republicans argued that the Judiciary Committee, chaired by Iowa Republican Chuck Grassley, and the Senate GOP majority are within their rights to decline to take up any Supreme Court nominee Obama sends them this year.

Legal scholars noted that Associate Justice Anthony Kennedy, nominated by President Reagan to the high court in November 1987, was unanimously confirmed by the Senate 84 days later on Feb. 3, 1988, at the outset of an election year.

Alexis Simendinger covers the White House for RealClearPolitics. She can be reached at asimendinger@realclearpolitics.com.  Follow her on Twitter @ASimendinger.

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