The unexpected death of Justice Antonin Scalia opens a seat in the Supreme Court and President Obama says he plans to exercise his Constitutional right to nominate his successor. However, with less than one year left in his term, the President faces a Republican led Senate that is not likely to approve his nomination.
Because Congress is currently in a recess and will not return until next week, Obama has the option to bypass the Senate and appoint a temporary justice while they are out of town. This appointment will expire after the Senate’s next session, but this Constitutional provision is exactly how President Dwight Eisenhower was able to nominate and eventually win Senatorial approval of former Justice William J. Brennan.
However, Temple Law Professor Mark Radhert says this isn’t how President Obama will fill Justice Scalia’s seat. “I think there would be a major, major explosion, if he tried to take that kind of step here.”
If Obama plans to wait until Congress returns to Capital Hill to announce his nomination, he will face the opposition of 53 Republicans in the Senate and Senate Majority Leader Mitch McConnell who says “…let’s be clear- [Obama’s] nominee will be rejected by the Senate.”
Rahdert says that “it remains to be seen, but this could just be an opening statement to create leverage for Republicans to have some control over the identity of the nominee.”
“I don’t know how it will go, but there will certainly be a lot of positioning and jockeying for position,” says Temple Political Science Professor Michael Hagen.
In addition to the Senate, almost all Republican candidates on the campaign trail say they want Obama to save the nomination for the next President. Obama has already nominated 2 justices: Sonia Sotomayor in 2009 and Elena Kagan in 2010.
Until Obama makes his move, Americans are left to reflect upon Justice Scalia’s legacy in the court.
“Justice Scalia was arguably one of the most outspoken and conservative justices…lots of people didn’t share his values, but many did and many would regard him as a hero, I’m sure,” says Rahdert.