RANCHO MIRAGE, Calif. – The death of Justice Antonin Scalia on Saturday set off an immediate partisan battle over a vacancy that could reshape the Supreme Court for years to come, as President Obama vowed to nominate a successor and Senate Republicans called on him to let the next president fill the seat.
Within hours of Scalia’s death, both sides began laying the groundwork for what could be a titanic confirmation struggle fueled by ideological interest groups. The surprise opening also jolted the presidential campaign hours before a Republican debate in South Carolina, shifting the conversation toward the priorities each candidate would have in making such a selection.
Speaking to reporters from Rancho Mirage, where he is golfing this weekend with friends, Obama paid tribute to Scalia, who died earlier in the day in Texas. He described him as “one of the towering legal figures of our time,” a jurist who dedicated his life “to the cornerstone of our democracy: the rule of law.”
But Obama also said, “I plan to fulfill my constitutional responsibilities to nominate a successor in due time.”
“There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote,” the president said. “These are responsibilities that I take seriously, as should everyone. They are bigger than any one party, they are about our democracy.”
The president’s tone left little doubt that he intends to use the full power of his office to try to leave a final imprint on the Supreme Court. His choice has the potential to be more decisive for the court’s makeup than his previous two – Justices Sonia Sotomayor and Elena Kagan – given Scalia’s longtime status as the court’s most outspoken conservative.
Obama would be the first president since Ronald Reagan to fill three seats on the court. But Senate Republicans made clear they would not make it easy for him, arguing that with just 11 months left in office he should leave the choice to the winner of the November general election. With 54 seats in the Senate, Republicans have the power to block the confirmation of any nomination sent by Obama if they stick together.
“The American people should have a voice in the selection of their next Supreme Court justice,” Sen. Mitch McConnell of Kentucky, the Republican majority leader, said in a statement. “Therefore, this vacancy should not be filled until we have a new president.”
Sen. Chuck Grassley of Iowa, the Republican chairman of the Judiciary Committee, agreed, citing “the huge divide in the country and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda.”
Although the White House made no immediate statement about a replacement, advisers to Obama made clear privately that he had no intention of leaving the matter to the next president. His Democratic allies made the case that Republicans would be irresponsible to block an appointment.
“It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” said Sen. Harry Reid of Nevada, the Democratic minority leader. “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.”
Scalia is the first member of the court to die in office since Chief Justice William H. Rehnquist, who died in 2005, leaving the court shorthanded and raising the prospect of 4-4 splits on major issues.
A tie by the court effectively leaves the decision under appeal unchanged but sets no national precedent. The court has the option of setting cases for re-argument in the term that starts in October in the hope that they can be heard by a full court.
The opening of a seat on the Supreme Court is sure to roil the presidential campaign. Both sides will use the vacancy to rouse the most fervent members of their political bases by demonstrating the stakes in the election. Republicans will likely talk about the need to stop Obama from using the court to advance his liberal agenda while Democrats will warn their supporters about the dangers of a Republican president making the selection.
The unexpected timing of the vacancy will force Obama to make a choice about how far he is willing to go to confront Republicans and inject social issues like abortion into the fall campaign. Will he opt for a relative moderate in hopes of winning over enough Republicans to actually seat a replacement despite McConnell’s warning? Or will he choose a more liberal candidate at the risk of being blocked on the theory that it might galvanize Democratic voters?
The situation also could prove complicated for McConnell, who since winning the majority in 2014 has labored to shed the obstructionist label and prove that his caucus can govern responsibly.
Approving an Obama nominee could provoke a backlash from conservatives, but a prolonged battle would put Senate Republicans in the middle of a campaign where McConnell had hoped not to be.
Obama has installed two reliable liberals on the high court, Sotomayor and Kagan, and adding another in place of Scalia’s formidable conservative voice could alter jurisprudence on issues like criminal justice, civil rights and affirmative action. The fate of Obama’s own programs could be affected, including his liberalization of immigration deportation rules and his environmental crackdown on coal-fired power plants.
With Democrats and independents who caucus with them holding 46 seats in the Senate, Obama faces a challenge getting to the simple majority needed to confirm a nominee and would face an even steeper climb to rally the 60 votes needed if Republican opponents mount a filibuster to his choice.
Filibusters of Supreme Court nominations are rare, but the Senate blocked President Lyndon B. Johnson’s selection of Abe Fortas for chief justice in 1968, leaving the seat to be filled by his Johnson’s successor, Richard M. Nixon.
When Democrats were last in the majority and rewrote Senate rules to bar filibusters for lower court judges, they deliberately left it possible to filibuster nominations to the Supreme Court. As a senator, Obama supported a filibuster against Justice Samuel A. Alito Jr., who was nonetheless confirmed in 2006.
Democrats said plausible candidates could include a series of appellate judges like Merrick B. Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, who has been considered by Obama before.
Others mentioned were two other judges in his circuit, Sri Srinivasan and Patricia Millett, and Jacqueline Nguyen of the 9th Circuit.
Some mentioned Kamala Harris, the attorney general of California who is running for Senate. On Capitol Hill, some Democrats were promoting Sen. Cory Booker of New Jersey, a Rhodes Scholar and Yale Law School graduate who at age 46 would presumably have a long tenure on the court.
No matter whom he picks, Obama can expect a fight that will help define his legacy – and perhaps help determine who fills one other vacancy that comes up next Jan. 20.