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After Justice Scalia

February 19, 2016

During assembly on Friday, February 19, Madeleine Johnson '16 spoke about the process, politics and potential impact of filling the late Antonin Scalia's seat on the U.S. Supreme Court. Her comments follow:

As some of you may have heard, Supreme Court Justice Antonin Scalia died last Saturday, the thirteenth. The last justice to die in office was Chief Justice Rehnquist, who died in 2005 at the age of 81. Justice Scalia was 79. He was a formidable figure on the court, and the subject of his replacement is being hotly debated across the country.

Article II, Section 2 of the Constitution states that the President may nominate and “by and with the advice of the Senate,” appoint judges to the Supreme Court. After the President chooses the individual they believe is best suited to fill the spot, the candidate is referred to the Senate Judiciary Committee. The upcoming nominee will be President Obama’s third; all presidents have nominated at least one, and over half have nominated three or more.

The time to vote on a nominee has taken as many as 125 days and as few as one. In recent years, the process has taken 75 to 90 days, according to the Washington Post. The first 60 days or so involve confirmation hearings, where the committee asks questions and hears testimony on the individual’s fitness to serve on the Court. 

It’s very rare for a justice to be confirmed in the last year of a presidency. The last case was in 1988, when Justice Kennedy was nominated by Ronald Reagan and confirmed by a 97-0 vote after 65 days. Lyndon B. Johnson attempted to elevate one justice and nominate another, but the Senate blocked the first and Johnson withdrew the second. This created an informal guideline known as the Thurmond Rule, which holds that a chairman of the judiciary committee shouldn’t take up new nominations within a few months of a presidential election. The current chairman, Chuck Grassley, has not ruled out taking up a nominee, but numerous GOP presidential candidates and a contingent of Senate Republicans led by Mitch McConnell have vowed to delay the process until the next president takes office, another 11 months. President Obama has said that he will nominate another candidate, and Senate Democrats hope to get the process completed quickly.

In the case of a 4-4 tie, the ruling of the lower court stands, and there is no nationwide precedent set. Without Justice Scalia, a strong conservative, the ideological breakdown between conservatives and liberals will likely be 4-4 in many cases. Upcoming votes include cases on abortion, affirmative action, presidential power through executive action, and unionization, some of which may have to be reargued, and some of which have yet to be presented. Justice Scalia’s death leaves many of those cases up in the air; no one knows for sure what will happen next.