USA TODAY International Edition
Brace for lengthy battle over seat
Republicans almost certain to block any Obama nominee
Justice Antonin Scalia’s sudden death will trigger a protracted battle over his replacement, one that may not end until 2017 after a new president is sworn in.
The Supreme Court is down to eight members and must move forward with a heavy caseload with that number. As such, the court is effectively deadlocked, with four liberals and four conservatives — although Justice Anthony Kennedy often sides with the left.
That raises the stakes for the nation’s conservatives — in Congress and prominent legal circles — to derail any nominee President Obama puts forward. Within minutes on Saturday, Republican lawmakers and conservative legal experts were demanding that the seat remain empty until the next president is elected.
Once a period of mourning is completed for one of the country’s legal and judicial icons, however, the White House is sure to devote its attention to a key question: Is there a left- of- center nominee who could win confirmation in the Republican- controlled Senate?
One name heads that list: federal appeals court Judge Sri Srinivasan, whom Obama put on the U. S. Court of Appeals for the D. C. Circuit. That’s the traditional stepping- stone to the Supreme Court, and Srinivasan won unanimous confirmation with high praise from Republicans.
Other potential nominees in- clude two of Srinivasan’s colleagues on that court, Judge Patricia Millett and Chief Judge Merrick Garland, who at 63 could be a moderate, compromise choice. Obama is fond of California Supreme Court Justice Goodwin Liu, but he likely would have a tough time getting confirmed.
The most likely scenario at the moment would appear to be something familiar to everyone familiar with Washington: gridlock.
“The American people should have a voice in the selection of their next Supreme Court justice,” Senate Republican leader Mitch McConnell said. “Therefore, this vacancy should not be filled until we have a new president.”
That same sentiment came from many Republican leaders, all of whom said it would be wrong for a liberal Democratic president to get to replace a conservative nominee of President Reagan during his final year in office.
The flip side is: Without a replacement, the court will limp along with eight justices, risking deadlocks on important issues such as abortion ( which comes up for oral argument next month) and immigration ( which will follow in April), not to mention cases already heard on affirmative action, voting rights and public employee unions.
That raises the possibility of frequent ties on cases that would have gone conservatives’ way, 5- 4, with Scalia on the bench. In those cases, the court’s ruling will uphold that of the lower court, but without nationwide precedent.
In the past, it has been difficult for the party opposing the president to block every nominee; at least some moderates in both parties believe it is the president’s right to pick the person of his choice. So some Republicans might be inclined to vote for an Obama nominee, particularly if it’s someone with bipartisan credentials.
Srinivasan could be that person. Confirmed to the D. C. Circuit unanimously in 2013, the 48year- old Indian- American jurist has worked in both Democratic and Republican administrations, most recently as chief deputy to the U. S. solicitor general, arguing cases before the Supreme Court.
It has been difficult but not impossible for nominees from both parties to win confirmation. Obama’s choices, Justices Sonia Sotomayor and Elena Kagan, got 31 and 37 “no” votes, respectively. President George W. Bush’s picks, Chief Justice John Roberts and Justice Samuel Alito, received 22 and 42.