Scalia’s Death to Set Off Battle Royal In Senate [With Multiple Updates]

Supreme Court Justice Antonin Scalia died today. Scalia was a towering intellect and a great justice. His sudden death is tragic on several levels. The immediate impact, however, will be political. President Obama will use the vacancy to try to expand the lawless bloc on the Court. Senate Republicans must do all they can to prevent this from happening.

Will it be possible for Republicans to run out the clock, treat Obama as a lame duck, and refuse to confirm anyone he nominates? Without having researched the point, I am not aware of a precedent for such a course. [Update: Scott reminds me that in 1968, Senate Republicans, a minority at the time, blocked Lyndon Johnson from appointing Abe Fortas Chief Justice and Homer Thornberry as an Associate Justice. More on that below.] At a minimum, Republicans will need to have a strong rationale for blocking Obama’s nominees, and will need to be competitive in the public relations battle.

There is at least one way that might happen. Democrats are obsessed with overturning Citizens United, and it is almost inconceivable that Obama would nominate anyone who doesn’t share that commitment. Most people don’t understand the holding of that case, but hearings in the Senate Judiciary Committee could be used to explicate it. If Citizens United were overturned, the effect would be that the federal government could constitutionally ban books, movies, magazine articles or videos critical of officeholders or political candidates. (The case involved a movie critical of Hillary Clinton, which the Obama administration tried to suppress.)

I can imagine Senate Republicans taking a firm line that they will not confirm any nominee who thinks it is constitutional for the government to ban books or magazine articles that criticize politicians. If they fight the battle on that line, they can win the PR contest and perhaps extend the fight to the end of Obama’s term.

One way or another, this shapes up as one of the epic battles in the history of the Senate.

UPDATE: The Supreme Court will, of course, be front and center in tonight’s GOP debate. If nothing else, it will be a good opportunity to smoke out the protean Donald Trump. He has said that his sister, a federal appellate court judge, would make a “phenomenal” Supreme Court justice. She is a liberal who is best known for holding that there is a constitutional right to partial birth abortion, a decision that was later overturned by the Supreme Court. Often, Trump suggests that he is indifferent as between liberalism and conservatism. That certainly won’t fly with GOP voters when it comes to the Supreme Court.

FURTHER UPDATE: How strong a precedent is the Republicans’ filibuster of Abe Fortas’s nomination as Chief Justice in 1968? It’s better than nothing, but the circumstances were significantly different. Chief Justice Earl Warren announced that he would retire upon confirmation of a successor. President Johnson then nominated Associate Justice Fortas to be Chief Justice, and Homer Thornberry to replace Fortas as an associate justice. The Republicans filibustered Fortas, with the vote being taken in October, near the end of Johnson’s term. As a result, Warren did not retire until 1969, when Nixon was president. He was replaced by Warren Burger. So in that instance, there was never a vacancy on the court and the filibuster preserved the status quo. I am not sure that most voters would see that as a persuasive precedent, but as stated above, I think Republicans have an opportunity to run out the clock if they can win the PR battle.

MORE: Some observers take a harder line. U.S. District Court Judge Fred Biery says, “Politically in the presidential cycle we’re in, my educated guess is nothing will happen before the next president is elected.” And a noted appellate lawyer emails:

If Grassley has any sense, the nomination never makes it out of committee. The last time a justice was confirmed for a vacancy that occurred during an election year was 1932, and Cardozo was more than acceptable to the Democrats.

FINALLY: Mitch McConnell has thrown down the gauntlet: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new President.” Chuck Grassley has come out with a similar statement. So it looks like their present intention is to simply shelve Obama’s nomination, hold no hearings, and take whatever political heat may result.

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