What’s the Issue?

On February 13, Supreme Court of the United States Justice Antonin Scalia passed away at 79 years old.  His passing leaves a vacancy in the Supreme Court calling for a replacement to bring the number of Justices back to an odd nine.  

It sounds simple.  But in the weeks that have passed since Scalia’s death, discussions on his replacement have been anything but simple.  The Constitution doesn’t give too much guidance on the handling of the Supreme Court.  

On the topic of appointments it says, “(The president) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.”

With President Obama in his last year, Senate Republicans have made it their mission to delay the nomination until after the election, infuriating the Obama administration.

What are the sides?

Another liberal-leaning Justice on the Supreme Court would be bad news for Republicans. The Senate has been very vocal and determined to do everything in their power to delay a nomination.  Republican Majority Leader Mitch McConnell has argued that by waiting until after the election, they would be giving the American people a say in the decision.

“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement.  “Therefore, this vacancy should not be filled until we have a new president.”

However, Democratic Minority Leader Harry Reid has countered this with a statement saying there are too many important issues pending in the Supreme Court right now to wait on filling the vacancy.  

“The president can and should send the Senate a nominee right away,” Reid said.  “With so many important issues pending before the Supreme Court, the Senate has a responsibility to fill vacancies as soon as possible… Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”  

 The Republicans have also made mention of a “Thurmond Rule” that, according to the American Constitution Society, should be called the “Thurmond Myth.”

The Thurmond Rule is an unwritten rule that no judicial nominations should take place in the last six months of a presidency.  Senate Republicans, including Mitch McConnell, have dismissed this rule in the past when Democrats had tried to use it in their favor during the Bush Administration.

Why should you care?

If the Senate Republicans are successful in their mission to delay the nomination until the next presidency, there will be even more riding on the 2016 election.  

Looking at the ages of the members currently serving on the Supreme Court, the next president could have the responsibility of filling two or three additional positions on the bench of the Supreme Court of the United States (SCOTUS).  

The New York Times pegs Scalia as the Supreme Court’s third-most conservative Justice. A Democratic nomination would bring the total number of Democratic judges up to five making the SCOTUS swing democratic for the first time in decades.   

The Supreme Court has major decisions still pending that need to be made this term, including cases over public sector unions, abortion, and the Affordable Care Act.  If no nomination takes place, the court will be split 4-4 causing the lower court’s decision to stand.