During the early hours of February 13th, Justice Antonin Scalia passed away, marking the death of both the longest-serving justice on the Supreme Court as well as the most conservative. Given that the bench of justices is now at an even 4-4 split between those who are “fairly liberal” and “fairly conservative,” the nomination of the next justice is believed to be the determining factor on upcoming cases on immigration, abortion, birth control, unions, redistricting, affirmative action, climate change and more.
The unexpected death of Justice Scalia only adds fuel to the ongoing fire of the current presidential race, with candidates already having anticipated that they would likely be appointing if not one, but a few justices to the Court; however, none of them could have anticipated it happening this fast. But it’s very possible that the Court will not see a full bench for a while.
Moments after the death of Justice Scalia, U.S. Senate Majority Leader Mitch McConnell had already promised to block anyone President Obama tries to nominate. Every single GOP candidate has backed McConnell’s decision, defying their otherwise sacred regard for the Constitution, which explicitly states that the President will nominate Justices of the Supreme Court by and with the advice and consent of the Senate. Overtly refusing to consider anyone the President nominates seems to be an act of premature and hypocritical defiance of their Constitutional duties. Both Democratic candidates have expressed support for President Obama and disdain for the GOP’s attempt to dismiss any nominee.
The hypocrisy doesn’t only extend to the entire political party, but seems to exist even on a personal level for some of these individuals, who seem to change their views whenever it is most politically expedient. Senator Mitch McConnell said in 2005, “The President, and the President alone, nominates judges,” and Cruz calling for a “referendum on the Supreme Court.”
The rhetoric being used is that the American people ought to have a say in who they decide to be their next Supreme Court Justice by electing a president that represents their values. This is all fine and good, except for one small caveat: we already elected one. Twice. And it would seem that his Constitutional responsibilities in his job description include appointing Supreme Court Justices, even if it does happen in the rare case of an election year cycle, which has happened already 17 times in the past. This is not unprecedented. This is obtuse stubbornness.
Despite the inevitable roadblock known as Congress, President Obama has pledged to try to appoint a justice; many believe as of now that the President will name Sri Srinivasan. Yet instead of the president appointing a new justice, one party has chosen to take whatever measures apparently possible to delay the process and frighten the general public into thinking that politicians know what’s best for them.
One needn’t go any further than Ted Cruz’s recent remarks regarding the implications of a new Supreme Court Justice. “We are one justice away from the Supreme Court concluding that nobody in this room and no American has an individual right to keep and bear arms. We are one justice away from the Supreme Court striking down every restriction on abortion, and mandating unlimited abortion on demand, up until the time of birth, partial birth, with taxpayer funding, and no parental notification whatsoever. We are one justice away from the Supreme Court ordering veterans memorials torn down all over this country if they contain any acknowledgement of God Almighty.”
Scalia’s untimely death in the midst of one of the ugliest and most unusual presidential races in recent memory leaves a lot in the air and only further reveals the gaps in American democracy. And it is entirely possible that this cumbersome process of successfully appointing a successor will only leave Americans even more upset and disillusioned with their government, and will thereby potentially prevoke even more anti-establishment sentiment in this upcoming election.