Scalia’s death cuts fierce battle lines in Washington
February 15, 2016 12:07 AM
Associate Justice Antonin Scalia
Zach Gibson/The New York Times
Samantha Montgomery places flowers Sunday outside the U.S. Supreme Court building in Washington, D.C., following the death of Justice Antonin Scalia.
By Carl Hulse and Mark Landler / The New York Times
WASHINGTON — An epic Washington political battle was seen as taking shape Sunday after the death of Justice Antonin Scalia as Senate Republicans dug in and refused to act on any Supreme Court nomination by President Barack Obama. But the White House — whose officials began sifting through their pool of potential nominees for the newly vacant seat on the nation’s highest court Sunday — vowed to name a nominee within weeks.
The unexpected death of Justice Scalia also was viewed as adding even more weight to the decision voters will make in November’s general election. For months, the candidates have espoused theoretical, sometimes vague, policy proposals. Now, the prospect of Mr. Obama’s successor nominating a Supreme Court justice immediately after taking office offers a more tangible way for voters to evaluate the contenders.
Republicans argued that Mr. Obama, as a lame duck, should not fill the vacancy created by the justice’s death, but leave it to the next president — which they hope will be one of them.
Mr. Obama pledges a nomination “in due time.”
The Constitution gives the Senate “advice and consent” powers over a presidential nomination to the Supreme Court.
Two senators seeking the Republican presidential nomination, Ted Cruz of Texas and Marco Rubio of Florida, both said unequivocally that the Republican-controlled Senate should ignore any nomination sent by Mr. Obama to Capitol Hill.
“The president can nominate whoever he wants, but the Senate is not going to act, and that’s pretty clear,” Mr. Rubio said on “Fox News Sunday.” “So, we can keep debating it but we’re not moving forward on it, period.”
On CNN, he also said he would “nominate someone like Justice Scalia,”
In an interview on ABC’s “This Week,” Mr. Cruz, a member of the Senate Judiciary Committee, said: “Let the election decide it. If the Democrats want to replace this nominee, they need to win the election.” He also vowed Sunday to filibuster any nominee the White House sends to Capitol Hill.
Donald Trump was alone among the candidates is naming specific justices he would consider nominating. He singled out Diane Sykes and William Pryor, federal judges appointed by former President George W. Bush.
Elsewhere, former Florida Gov. Jeb Bush and Ohio Gov. John Kasich were casting themselves as candidates who could appeal to swing voters in the general election and put the GOP in position to guide the next court nominations.
Their comments followed declarations by Sen. Mitch McConnell, R-Ky., the majority leader, that Mr. Obama should not try to fill the vacancy left by Justice Scalia, who died Saturday in Texas, given that less than a year remains in the president’s second term.
That view is backed by Sen. Charles E. Grassley, R-Iowa, chairman of the Judiciary Committee, which would consider any nominee. The stance puts Senate Republicans in the politically charged position of defying the president on a crucial court opening amid the heat of the presidential campaign — and while also trying to hold on to their majority in the Senate.
Democrats immediately sought to pressure Republicans, saying that a refusal to even consider a nominee would amount to an outrageous act of obstructionism — a charge that has been leveled at Mr. McConnell in the past with some success. Democrats predicted that a backlash from the public, particularly in the swing states where Republicans need to win to hold on to control of the Senate, could eventually prompt reconsideration by Mr. McConnell.
“I think there is at least a 50-50 chance that pressure from the Republican Senate caucus will force Mr. McConnell to reverse himself and at least hold hearings and a vote,” said Sen. Chuck Schumer of New York, the No. 3 Democrat in the Senate and a senior member of the Judiciary Committee.
Mr. Schumer also scorned Mr. Cruz’s stance. “You know, the Constitution, Ted Cruz holds the Constitution, you know, when he walks through the halls of Congress,” Mr. Schumer said. “Let him show me the clause that says president’s only president for three years.”
Presidential candidate Hillary Clinton, in a Twitter message, said Mr. Obama will occupy the White House until January. “It’s his job to nominate a justice; the Senate has a responsibility to vote,” Ms. Clinton said.
Vermont Sen. Bernie Sanders, vying with Ms. Clinton for the Democratic nomination, said on CBS’s “Face the Nation” that denying a vote for a Supreme Court nominee “is beyond comprehension, and it just speaks to the unbelievable level and unprecedented level of Republican obstructionism against Obama.”
Ms. Clinton also said: “If any of us needed a reminder of just how important it is to take back the United States Senate and hold onto the White House, just look at the Supreme Court.”
Ms. Clinton has said she would have “a bunch of litmus tests” for potential nominees, including a belief that the Citizens United ruling clearing the way for super political action committees and unlimited campaign contributions should be overturned. She also said the court’s makeup is crucial to preserving abortion rights and the legality of gay marriage nationwide.
Mr. Sanders has raised opposition to Citizens United as a requirement for any Supreme Court nominees.
Republicans insisted that refraining from Supreme Court confirmations in election years is a longtime precedent.
But Sen. Patrick Leahy of Vermont, the top Democrat on Judiciary Committee, said the Senate — with a Democratic majority — approved a Supreme Court nominee in the last year of President Ronald Reagan’s term, setting a precedent for action on Justice Scalia’s replacement.
Justice Anthony Kennedy was confirmed by the Senate on Feb. 3, 1988, in the final year of Mr. Reagan’s presidency, by a 97-0 vote. That was a presidential election year. Justice Kennedy was nominated in 1987 and confirmed the next year.
Of course, Justice Kennedy, who is still on the court, was Mr. Reagan’s third choice, and far less reliably conservative than the first two picks. The Senate rejected the nomination of Robert Bork and Douglas Ginsburg withdrew over reports that he used marijuana while a Harvard law professor.
On Sunday, Eric Schultz, principal deputy press secretary, said the White House expected the Senate to give that nomination appropriate consideration when the time came. Mr. Schultz said the White House would not rush on a nomination this week, given that the Senate will be in recess.
Administration officials would not provide further details about the selection Sunday, though in the past the president has taken about a month to forward a name to the Senate once a vacancy opened up on the Supreme Court. It took him that long to nominate Justice Sonia Sotomayor after David Souter announced his retirement, and to pick Justice Elena Kagan after John Paul Stevens said he was stepping down.
To overcome a GOP filibuster, Mr. Obama will need to win the support of all 46 members of the Democratic caucus and at least 14 Republicans to reach the 60-vote threshold to advance a nomination to final approval. In 2013, when Democrats were in the Senate majority, they forced a controversial rules change, invoking the so-called “nuclear option,” to allow the approval lower-court judges by a simple majority. Those changes did not apply to Supreme Court nominations, which can be filibustered, and are therefore subject to the higher 60-vote threshold. Republicans were furious about the 2013 changes, and that residual anger could be a huge obstacle for any Obama nominee.
Sen. Lindsey Graham, R-S.C., warned in an interview that the Democrats’ decision to change the judicial confirmation rules has made it nearly impossible to confirm a Supreme Court nominee under the current president.
In choosing a nominee, Mr. Obama faces his own complicated calculus: He could pick a liberal version of Justice Scalia, which would fire up Democrats but would virtually assure that Republicans would block the nomination in the Senate. Or he could choose a moderate — someone who came up as a prosecutor or a corporate litigator, with little record on culture-war issues — which could increase pressure on Republicans to allow a vote.
But that could pose other problems. If Mr. Obama passes up the opportunity to put forward a progressive in favor of someone who represented corporations, it could provoke blowback from the left. The danger is not just reducing potential voter enthusiasm from Democrats but roiling the Democratic presidential primary.
The two Democratic candidates will have to take a stand on whomever the president nominates, and Mr. Sanders is challenging Ms. Clinton from the left and making the power of the corporate establishment an issue.
It was not yet seen as clear which way the president was leaning. But some former White House officials said they would advocate a nominee with a proven record of support in Congress as a way of laying bare the purely political nature of the Republican opposition.
“There will be many opinions on this and a lot of good candidates,” said David Axelrod, a former senior adviser to Mr. Obama. “But I would favor sitting appellate judges like Srinivasan or Jane Kelly from the 8th Circuit, who have cleared the Senate unanimously.”
Mr. Axelrod was referring to Sri Srinivasan, an Indian-American jurist whom Mr. Obama named to the U. S. Court of Appeals and who was confirmed by a vote of 97-0 by the Senate in May 2013. Judge Kelly, a former federal public defender in Iowa who was in Mr. Obama’s class at Harvard Law School, was named to the Court of Appeals by him in 2013. Like Srinivasan, she was confirmed unanimously — in her case, 96-0.
Any nominee for the Supreme Court from Mr. Obama would, if blocked by the Senate, become a leading candidate for a Supreme Court nomination from a future Democratic president. Still, Mr. Axelrod said he did not expect Mr. Obama to consult either Clinton or Sanders on his choice.
“I don’t believe the next president would be bound by this appointment, nor do I feel he needs to consult with the candidates,” Mr. Axelrod said.
The shock of Justice Scalia’s death and the battle over whether to proceed with a confirmation, which will likely last months, threatened to upend Mr. McConnell’s careful plans to show that the Senate was working again after years of dysfunction. Republicans were eager for a relatively calm year leading into the election, but Justice Scalia’s death ended those hopes.
Democrats said that if Mr. McConnell persisted in trying to block a nomination, he should anticipate little cooperation from them moving forward.
“If McConnell stonewalls, we will empty the arsenal,” said one top Democratic official, who requested anonymity to discuss party strategy. “We will make sure this is seen as the radical, unprecedented act of obstruction that it is.”
Democrats said that they would welcome the opportunity to confirm a justice who would reshape the ideological makeup of the court with so many crucial decisions looming. But they said a fight over Republicans dismissing a nominee without a hearing or a vote played to their political advantage and would motivate voters both in the presidential contest and the crucial Senate races in states such as Illinois, Wisconsin, Pennsylvania, Ohio, New Hampshire and elsewhere.
Republicans said that the fight would energize their voters as well and that they would face a conservative revolt if they did proceed with a nominee, allowing Mr. Obama a late-term victory in potentially reshaping the court for years.
For Mr. Obama, the prospect of a battle for the ideological soul of the nation’s highest court drastically transforms a final year that had been shaping up as an extended exercise in legacy-building.
Mr. Obama was informed of Justice Scalia’s death while on a golf course in Rancho Mirage, California, where he is spending a leisurely long weekend with childhood friends from Hawaii. His six-day swing to the West Coast had been replete with images of a president in his last lap, defending his record, raising money for other Democratic candidates, and announcing largely symbolic steps to secure his achievements.
Last week, Mr. Obama visited Springfield, Illinois, and addressed the state assembly not far from where he announced his candidacy in February 2007. At fundraisers in Silicon Valley and Los Angeles, he spoke of his desire to remain politically relevant after he leaves office and lamented the fact that voters appear so angry, even though, he insisted, “the country is indisputably, demonstrably better off than when I took office in just about every measure.”
Amid the political sniping, in the nation’s capital, flags flew at half-staff at the White House and Supreme Court.
Justice Scalia’s colleagues praised his brilliance and grieved his death. Justice Ruth Bader Ginsburg said she and Justice Scalia “were best buddies” for more than 30 years. Justice Clarence Thomas said, “It is hard to imagine the court without my friend.”
In Pennsylvania, Gov. Tom Wolf also has ordered U.S. and commonwealth flags at the Capitol Complex and at all state facilities to fly at half-staff. The governor’s proclamation said flags will remain at half-staff until interment.
It’s one of many gestures Pennyslvania has offered in the wake of Justice Scalia’s death.
On Sunday, former Gov. Tom Corbett said: “During my tenure as Governor, one of the greatest honors I had was forging a friendship with Justice Antonin Scalia. Justice Scalia will go down in our nation’s history as one of the brightest minds to ever serve on the Supreme Court, an unapologetic defender of the U.S. Constitution and someone I had an incredible amount of respect for regarding the principled opinions and decisions he authored.”
Sen. Pat Toomey, R-Pa., said Justice Scalia “was a true patriot, serving on the U.S. Supreme Court for three decades. He was a tireless defender of the U.S. Constitution and a principled conservative who brought both tremendous intellect and wit to our nation’s highest court.”
Pittsburgh Post-Gazette, The Washington Post, Associated Press and Bloomberg News contributed.