There was an immediate outpouring of sadness and tributes to his character and accomplishments at Anthony Scalia’s passing. The New York Times collected many of these along with their analysis of the immediate future of the Supreme Court:
“A lie can travel half way around the world while the truth is putting on its shoes”
Thanks to the internet, lies travel the world at the speed of light. Justice Scalia’s passing occurred on the same date as the Republican debate. Ted Cruz and Marco Rubio announced during an Republican debate, that President Obama would break an 80 year precedent, if he appointed a Supreme Court justice during an election year.
No precedent exists. Obama can not appoint justices, he only nominate them and the Senate approves them. The New York Times shows Justice Kennedy was the last justice to be nominated during an election year. Amy Howe, Editor of Scotusblog agrees- no precedent.
Politifact also confirms this:
No president has ever considered leaving it to the next president to select a Supreme Court justice. Senate confirmation of any justice will be next to impossible, with the politicizing of the approval process.
On top of that, honoring a precedent, Rubio insisted it would make the selection more democratic. Let the people decide. If there is a justice that would absolutely cringe at this idea, it would be Justice Scalia. He said numerous times, that because of the intricacies of the court cases, 99% of the population does not understand or appreciate the process. They only see outcomes. Decisions are based on laws, the Constitution and prior decisions made by the courts.
But, confirmations in the Senate have become increasingly politicized and both Republicans and Democrats should take blame for this. Obama could nominate the brightest justice on the planet, and his selection would never make it to confirmation hearings. The Senate’s Majority Leader Mitch McConnell is establishing a new and dangerous precedent, making it difficult for a president to carry out his legal obligations under the Constitution.
As the big pending cases (limitations on abortion, affirmative action case in Texas, Obamacare conflicts with religious freedom burdens, and immigration reform by executive action) are to be decided this term, Justice Anthony Kennedy will continue to be the swing vote, but it will be different. If he sides with the liberals, it will be a 5-3 victory. If he sides with conservatives, it will be a 4-4 decision, and the appeals court decision will hold. The Justices can decide to hold off a decision until their next term, hoping that a new justice will be confirmed by then.
More to come.
Stay tuned,
Dave
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