Fisher v. University of Texas is an affirmative action case about whether the University of Texas can maintain a race-conscious admissions plan. Since Associate Justice Elena Kagan recused herself because she had worked on the case when she was solicitor general, only seven justices can vote on it. Kennedy will be the swing vote. If he swings to the right, the university's affirmative action program will be struck down. Scalia's death eliminates the possibility of a tie vote.
United States v. Texas is a challenge to Obama's plan to defer deportation for nearly 5 million undocumented immigrants. A 4-4 split would defeat the program in the Fifth Circuit Court of Appeals, but the US Justice Department could secure authorizations to go forward with the plan in other circuits. Had Scalia not died, the Supreme Court would probably have imposed broader limitations on Obama's authority to issue executive orders.
A critical climate change decision is also pending before the high court. Obama has charged the Environmental Protection Agency (EPA) with reducing carbon emissions by 32 percent by 2030. In a highly unusual recent move, the Supreme Court issued a 5-4 emergency order blocking the plan, which was put on hold pending a decision by the US Court of Appeals for the DC Circuit. The circuit court, which is generally liberal, refused to grant the stay before the high court did so. The DC circuit court will hear the case this summer. The EPA could change the plan slightly and expect the circuit court to allow it to proceed.
What Happens Next?
Senate Majority Leader Mitch McConnell vowed to block anyone Obama might choose to nominate to fill the vacancy on the court. The GOP candidates piled on, reiterating that Obama should refrain from nominating someone to fill Scalia's seat so the next president could make the nomination. They know that Obama has an opportunity to change the balance of what has been a conservative court for four decades.
But Obama does not have the discretion to refrain from nominating a replacement for Scalia. The US Constitution says that when a vacancy occurs on the Supreme Court, the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." The language is mandatory, not permissive. There is no exception for vacancies that occur near the end of a president's term.
Interestingly, McConnell wrote in 1970 that "the Senate should discount the philosophy of the nominee" and that "the president is presumably elected by the people to carry out a program and altering the ideological direction of the Supreme Court would seem to be a perfectly legitimate part of a presidential platform."
If no justice is appointed until the next president takes office, there will be a vacancy on the high court for nearly a year, hobbling its ability to carry out its constitutional function.
Republicans disingenuously claim that no Supreme Court nominee has been confirmed in an election year. But Justice Anthony Kennedy was nominated by President Reagan and confirmed in 1988, with nearly unanimous support from Democrats. And in 11 of the 13 times a vacancy occurred during a presidential election year, the Senate acted on the president's nomination.
For the most part, the Senate has deferred to presidents' choices for Supreme Court nominees.
Obama will probably nominate a moderate such as Srikanth Srinivasan. In 2013, on a 97-0 vote, the Senate unanimously confirmed Srinivasan, an Indian-American judge, to the US Court of Appeals for the DC Circuit. He had served as principal deputy solicitor general, arguing some 20 cases on behalf of both the George W. Bush and Obama administrations. Although he doesn't have a long paper trail, Srinivasan would probably vote with the liberal justices.
It appears that anyone Obama nominates will not get a vote in the Senate. A president's nomination is referred to the Senate Judiciary Committee, which is currently comprised of 11 Republicans and 9 Democrats. That committee should investigate the nominee's background and hold a hearing at which the nominee is interrogated. The committee should then vote on the nominee. If the committee votes against the nominee, the nomination will not reach the Senate floor for a decision. If it does reach the Senate floor, a simple majority is required to confirm a nominee. But Republicans can filibuster the nomination, which means 60 votes would be necessary for confirmation. The Senate has 54 Republicans and 44 Democrats.
Although filibusters of Supreme Court nominations are rare, a filibuster seems possible in this case because the political system is unusually polarized. If McConnell stands by his threat to block Obama from carrying out his constitutional duty to nominate someone to the vacant seat, there could be a standoff until the election. The Democrats are likely to take back the Senate, and it would fall to the next president to fill the vacancy. Although Obama can make a recess appointment until the Senate resumes on February 22, he is much more likely to nominate a candidate in due course, and wait for the Republicans to hoist themselves on their own petard, knowing that Independents and moderate Republicans would bridle at such blatant obstructionism.
This article originally appeared on Truthout
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
1
1
1
