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The death of Justice Antonin Scalia not only complicates the upcoming Supreme Court term, but also has enormous ramifications on the political landscape. The Senate is ramping up for a battle of epic proportions, as President Obama plans to fulfill his constitutional obligation and nominate someone to the court.
To help us understand what is next, we are joined by our regular court-watcher, Marcia Coyle, chief Washington correspondent for "The National Law Journal," and John Stanton. He's Washington bureau chief for BuzzFeed.
And we welcome you both to the program.
Marcia, let me start with, before we got to what we just — what I was just saying. You covered Justice Scalia, you were just telling me, for more than 20 years. What is your most enduring impression of him?
MARCIA COYLE, The National Law Journal:
Well, Judy, I think the public will remember him most for some of his angry, bombastic, funny comments in his opinions.
But I that really sort of diminishes the man. When I think of Justice Scalia, I remember his quick wit, how in private he was charming, almost humble, passionate, as passionate about his love of his country as he was in his opinions.
Well, let's talk about what the Constitution says, first of all, about what the president's responsibility is after there is a vacancy on the court. Is there any doubt, Marcia, that the president is supposed to nominate someone?
No, there's no doubt at all. The Constitution says, the Appointments Clause, says that the president shall appoint, by and with the advice and consent of the Senate, judges to the courts, the Supreme Court.
And is there any leeway, any exceptions through precedent, through history?
For the president not to do that?
Not to my knowledge, no.
And, John, you know, from once the president names someone, it's the Senate's responsibility to consider that nomination. Any leeway that the Senate has in terms of what it's supposed to do?
JOHN STANTON, BuzzFeed News:
Well, by precedent, they are kind of a little bit — they are required to do something at some point.
That said, there is no rule that says that they have to take up the nomination, they have to hold hearings. It's never been done before. But they could very easily essentially wait out the president until they get the past the election to the next year to see who becomes the new president.
And that's kind of what Mitch McConnell, the Senate majority leader, said he wants to do.
So, I was going to add, who are the — we know there are some key players in the Senate on this. Who are they and what are they saying?
Well, I think the ones to look at are McConnell and Grassley and Ted Cruz right now, frankly.
I think the three of them. And they have all said that they do not want to have a nominee come forward. They have asked the president not to do it. I think that if Cruz were to become a nominee, you could see a situation in which he might want to have hearings. He's on the Judiciary Committee. This could prove to give him some free press and a platform in which to attack the president, attack Democrats and their policies, and show he's really tough on this stuff for his people.
And that could actually work in his favor. So, you could in theory see that kind of sort of a Machiavellian move, but…
Marcia, so what is the precedent for a president in this situation? What we have seen in history? Has presidents made nominations that were just set aside by the Senate?
"There is really no tradition of leaving a seat open on the Supreme Court during an election year….it's important to know that this process can go forward if both sides are willing to do it." Well, first of all, there is really no tradition of leaving a seat open on the Supreme Court during an election year.
There have been nominations and confirmations during presidential election years. There have been confirmations during presidential election years, with the nomination coming, say, the year before. In fact, Justice Anthony Kennedy was confirmed during a presidential election year — he was a Republican nominee confirmed by a Democratic-controlled Senate.
So it's important to know that this process can go forward if both sides are willing to do it.
A lot of discussion about whether the president could make a recess appointment. What are the options there?
Well, I think the White House so far has said they're not going to do that. I think that could potentially change. He can legally do it. There's no way to stop him from doing that.
Meaning, when Congress is in recess, name somebody.
The way the Congress could sort of circumvent that is if they just don't go into recess until after basically the — until next January right before the inauguration of the new president. And they could just have these pro forma sessions where they come in every couple of days.
The Supreme Court said I believe they have — that president can't do it in a recess that is longer or shorter than 10 days, I believe.
Judy, the court actually very recently gave both the president and Congress something on this issue.
It said that the president can nominate during a recess, but the Senate determines when it is in recess. And even though the Senate may leave, it can continue to thwart a recess appointment by just doing some nominal business. So that really leaves it in the Senate's hands to decide whether they go forward.
But there is precedent, as you asked, Judy, for a recess appointment to the Supreme Court. President Eisenhower nominated one of the most influential justices of the 20th century as a recent appointment, William Brennan. He also nominated as a recess appointment Potter Stewart. So there is precedent for that.
Assuming, though, Marcia, we're headed for a showdown, a collision with no solution in the coming year, what are the cases that are at stake this year? What is it that the court is going to be deciding that may not be decided because of a lack of that ninth justice?
Well, I look at the cases in two groups, first, cases that have already been argued, and the justices have sat down and voted on the outcomes of those cases.
If Justice Scalia had voted and was actually writing an opinion that could have been announced, say, even next week, when the court comes back to the bench, that is — his vote, his opinion is void. The court does consider those opinions that have not been announced by the court draft opinions.
So those opinions, if he was doing them, would be possibly assigned to another justice to do. It would be a brand-new opinion. Those case right now that we are looking at include, for example, the affirmative action challenge, the big union challenge. The second group of cases that are going to be argued between now and April very big cases involving abortion clinics, President Obama's immigration action, as well as religious nonprofit challenges to contraceptive health insurance.
The court there may have 4-4 splits. It could reorder re-arguments. Clearly, an eight-justice bench is not what this court would really like to see go on for any length of time.
And, John, what about those Republicans in the Senate who are saying there should not, will not be a confirmation take place this year? Are they prepared for that, for the outcome of these cases to be in limbo or to…
I think so. I think that, as far as they're concerned, this is a thing that they very much care about, their base very much cares about it.
And if you look at how, unfortunately, politics has gone in this country the last 10 years, the members on both sides, but particularly in the Republican Party, are being elected because they are willing to sort of stand up to something, right, stand up to the president, stand up to the status quo.
And by saying we are not going to give this guy another nomination to the Supreme Court, we want to wait until we maybe hopefully get our guy in, into the presidency, that's a strong signal to their voters. And I think a lot of them see that as a political win for them and also as an ideological win.
They don't want to see Obama nominating anybody, because they — and I would agree with them — that he's not going to nominate a conservative to the bench to replace Scalia. And I think that they feel like that has to be replaced by a conservative.
And just quickly, Marcia, is there a sense that these cases that would be — if there were to be 4-4 without — essentially without a decision, is there a sense that one side or another is going to be predominantly favored by that, advantaged?
Well, it depends on whether you won or lost in the lower court.
For the president's immigration action, if it was a 4-4 split, that would be a major defeat for the president, because he's challenging the lower court decision. It would be a major defeat for abortion clinics who are challenging the Texas restriction.
It would be a major victory for unions who won in the lower court on fair share fees. So, it really depends. Also, we need to take something of a longer look here. This is — this appointment, if it is by a Democratic president, is a major — could be a major shift.
There are many areas of the law that could be affected, not just Citizens United and the Second Amendment, but voting rights, discrimination cases, many areas.
And we're just beginning to look at them.
Marcia Coyle, John Stanton, we thank you both.
It's my pleasure, Judy.
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