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The death of Antonin Scalia has created political intrigue that the late justice most likely wanted to avoid at all costs.
“What justices do is they try to time their departure for a favorable president in office. Justice Scalia admitted as much,” says NIU professor of political science Artemus Ward, who is the the author of “Deciding to Leave: The Politics of Retirement from the United States Supreme Court.”
“He said, 'Why spend 30 years building up a judicial record only to have a president appoint someone with different views who will undo my legacy,' ” Ward says.
Unfortunately, for Scalia, his death in the final months of the Obama presidency has created the type of chaos he hoped to avoid. It will make for great political theater, but it also will further expose the bitter partisan politics that reign in Washington.
“Most of our politicians are not principled,” says Matt Streb, chair of political science at NIU. “They are only interested in what will help them achieve their goals, what is good for their party.”
President Obama has made it clear that he will put forth a nominee, now the question is who it will be, and how will it influence presidential politics. He has two paths open to him, says Streb.
One option would be to choose a very liberal nominee in hopes of energizing the Democratic Party’s political base, and increasing turnout at the polls in November. Alternatively, he might attempt to paint Republicans as “The Party of No” if they reject a moderate candidate who previously enjoyed bipartisan support when appointed to the federal bench. After all, hard-line Republicans are already playing to their base by declaring that they will oppose any nomination until after a new president is seated.
Regardless of which path is chosen, Ward wonders if this might open the door to changes in how the Supreme Court is populated.
“Reforms should be discussed, and perhaps Scalia's death will cause the American people to have these debates,” says Ward. Many states and foreign countries offer blueprints for alternatives, he points out. One idea often put forth by scholars is to appoint justices to 18 year terms, and allow each president to appoint two.
“It would take the politics out of the departure decisions and mitigate the impact after justices die when serving on the bench,” says Ward.
Of course, points out NIU law professor Morse Tan, any such change would require a constitutional amendment, and such a thing is not going to happen between now and January 2017, so the battle lines are being drawn. Such standoffs are rare.
“There has never been a death of a justice during presidential election year in modern times; creating the hyper-media, hyper-partisan environment,” says Ward. The closest analog, he believes, was in 1968. Chief Justice Warren Burger wished to retire under a Democrat president so that he could be replaced by a liberal. After Bobby Kennedy was assassinated, and a Richard Nixon presidency appeared a sure thing, he hastily submitted his resignation so that Johnson could appoint a successor to his post. The move was blocked by Republicans.
“Nixon got to pick the next chief justice and Democrats have never gotten it back since,” says Ward. “So far everything is going according to the 1968 playbook. Partisanship reigned then and it reigns now.”
Ward believes the battle over the nomination will be so contentious that it may make it difficult for Obama to find anyone interested in the post.
“The president may end up going down a long list of nominees looking for someone willing to go through this firestorm,” says Ward. “Whoever it is will be scrutinized like no one ever before. They may not want to go through that, especially if they have little hope of actually being confirmed.”
While Washington hums with speculation over who the president may put forth, Ward has his own ideas about whom he believes the president will put forth: Ketanji Brown Jackson, a 45-year-old African American jurist who received unanimous approval when she was named to the federal bench three years ago. Not only would she energize the Democratic base, she also is young enough to serve on the court for decades, helping cement Obama’s legacy.
In the end, the identity of the nominee is likely a moot point as most observers believe the Republican-controlled Senate will succeed in putting off a decision until after the next president comes into office. The reality of that is disappointing, says Streb.
“What is at stake here is fundamentally about how we view our democracy,” says Streb. "This justice will have an enormous impact on policy for many, many years.”