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Polarization of the Supreme Court Vacancy

13 April 2016

By Kyler Beaty, Legislative Research Intern
         On February 13, 2016, U.S. Supreme Court Justice Antonin Scalia passed away. According to the United State Constitution, the President is responsible for nominating the replacement justice, and the Senate is then responsible for confirming or denying that nomination; however, some politicians are calling for President Barack Obama to abstain from the nomination, leaving 8 justices to make judicial decisions for almost a year. This Supreme Court vacancy has become a polarized partisan issue. The last two Supreme Court nominations, PN 506 and PN 1768, were also appointed under the Obama Administration, and allowed Sonia Sotomayor and Elena Kagan to elevate to Supreme Court Justices.
         On the day of Scalia’s death, a debate occurred in which all of the Republican presidential candidates either asked President Obama not to appoint a Supreme Court Justice, or asked the Senate to refuse to confirm the appointee. Donald Trump said the goal is to “delay, delay, delay”. In this same debate, Ted Cruz and Marco Rubio both said there was an 80 year precedent in which a Supreme Court Justice has not been confirmed by the Senate during an election year. A few hours after Scalia’s death, Republican Senator Mitch McConnell said in a press conference that he believes the American people should have a say in the next Supreme Court justice, and therefore the next President should fill the vacancy. Democratic Vice President Joe Biden took a similar position in 1992 while serving in the United States Senate. At that time, rumors were spreading about a Supreme Court Justice retiring, and then-Senator Biden advised President George H.W. Bush not to propose a new justice until after the election that November. When questioned about the statements, Vice President Biden recanted, pointing to a line later in the statement urging the White House and legislators to work together on a nomination rather than play election season politics
         A few days after Scalia’s passing, Harry Reid, the Senate minority leader for the Democrats, released a statement expressing his support for President Obama to fulfill his Constitutional duty to elect a new justice. He also condemned statements from Republicans, saying justices have been confirmed in election years “as recently as 1988”. Reid described in his statement that Justice Anthony Kennedy was confirmed in 1988 under President Ronald Reagan. He also criticized the statement from Mitch McConnell in the same speech. Harry Reid expressed his opinion that the American people did have a say when they elected President Obama for two terms in office. Bernie Sanders stated that he thinks President Obama should elect a new justice, and the Senate should confirm that justice as quickly as they can. Hillary Clinton expressed that she feels it is an “outrage” that Republicans plan to block Obama’s decision.
        With a little less than a year to go until the next president will take office, the Supreme Court is left with eight Justices to hand down decisions, where there are normally 9. Because there are 4 left-leaning justices and 4 right-leaning justices, this could result in an abundance of grid-locked decisions. A Supreme Court decision that results in a tie effectively upholds any decision from the highest previous court; however, the situation being dealt with is very rare. The longest Supreme Court vacancy in the history of the United States was 27 months, but the longest vacancy since the Supreme Court was expanded to accommodate 9 justices was 391 days. At the time of Scalia’s death, President Obama had about 340 days left in his presidency. The decision made in this predicament could set a precedent for future Supreme Court nominations. In that case, it is difficult to predict what will happen in the future. President Obama recently decided to elect Merrick Garland as the new Supreme Court Justice, rather than allow the empty seat to stay until the next president takes office. Will the Senate confirm the appointee, or will the vacancy remain unfilled until January 2017?
Kyler Beaty is a student at Texas State University majoring in applied sociology and a current intern with Project Vote Smart. For more information on internship opportunities with Project Vote Smart, contact us at or by calling 406-859-8683.


Related tags: blog, SCOTUS

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