Supreme Court Justice Scalia, who has just died unexpectedly, was a highly influential figure in American jurisprudence and legal thought. There will be much written about his legacy over the next few days. Yet even in the first few hours after the announcement of his passing, politicians are staking out their positions on the politics of nominating his successor.
Senate Majority Leader Mitch McConnell, in his tribute to Scalia, stated bluntly that the vacancy should not be filled during President Obama’s remaining time in office. This is unsurprising – the political stakes are enormous. Here is how the battle is likely to play out.
How the process works
The Obama White House will need to vet and nominate a nominee to send up to the Senate. This might take some time. The Senate Judiciary Committee typically conducts its own background vetting as well, as part of the process of preparing for a committee confirmation hearing. The committee can approve, reject or forward the nominee to the Senate calendar. The Senate Majority leader, Mitch McConnell (R-Ky.), who has just announced his hostility to any nomination in this presidential term, could then move (by majority vote) to go into executive session to call up the nominee. Sixty votes are required for the nomination to get cloture. At the moment, the Republican party has 54 (assuming Sens. Ted Cruz (R-Tex.) and Marco Rubio (R-Fla.) were to show up). If the nominee gets 60 votes or more for cloture, the Senate then follows with an up or down, vote to confirm – at this point, all that is needed is a simple majority.
This process will highlight partisan divisions
This process is going to be divisive. There will be a tough confirmation battle — even assuming that the Obama White House gets a nominee vetted and announced swiftly. It’s been 25 years since the Senate was called on to confirm a nominee from a president of the opposing party. That time it was Clarence Thomas, who succeeded in being confirmed to the Supreme Court, but only after a grueling political process. As the graph below shows, partisan competition and antagonisms were far lower then compared to their heights of today.
The outcome is highly uncertain
It’s really hard to tell what the outcome is going to be at this point. Here are two plausible possibilities.
In this scenario, McConnell resists consideration of a nominee, even if forwarded to the floor by a GOP-led Senate Judiciary Committee (which may of course also try to stymie the process). While Republicans like McConnell and Cruz have already stated their opposition to a nomination during Obama’s term in office, they haven’t provided much detail as to why. However, one might easily imagine some of the arguments that Republicans will make. For example, they could claim that this is a lifetime appointment and no lame duck president should be able to put his own partisan appointee on the bench for life. If McConnell is inclined to play hard ball, as his early statement suggests, the nomination becomes fodder for the presidential campaign and the Court stays divided 4-4 between Democratic and Republican nominated judges.
Dragging feet as long as possible
Under this scenario, Obama selects a nominee whose credentials are so sterling that it is hard for McConnell to refuse to consider him. Here, for example, pressure on Republican senators running for re-election in blue states (such as Ayotte and Kirk) could create pressure on McConnell to consider Obama’s nominee. One should keep in mind that the 60 votes for cloture could come from all the Democrats plus 14 members of the Republican Party.
This is possible – but still, one should remember that the Senate dragged its feet for five months until it confirmed Loretta Lynch for Attorney General, despite how much the Republican Party despised Attorney General Eric Holder (who remained in office pending her confirmation). Her position was far less politically salient, but she was a high profile African-American woman and highly qualified for the job. The Republican Party still dragged out her confirmation. For a position as important as Supreme Court justice, they are likely to prolong the process as much as they can, even if they think that they have to be seen to take the nomination seriously.
The calendar shapes the process
Despite the fact that we’re only in February, there’s actually not that much Senate time left this year before the Senate leaves in early October for the elections. And the Senate is out much of the summer. That’s going to make it easier for McConnell to drag the Senate’s feet, even if pressure rises for a vote, and he ends up qualifying his position.
So in short: under one of these scenarios, we should expect no confirmation before the election. Under the other, the process will be long and painful. The combination of circumstances, political importance of the position and very high polarization mean that an easy nomination process is highly unlikely.