The Scalia Replacement:

Expect an Epic Fight

| published February 15, 2016 |

By Keith H. Roberts, Thursday Review contributor

Within an hour of the first press reports of the death of Supreme Court Justice Antonin Scalia, and only 90 minutes before the start of what would become the Republican candidate’s most contentious and heated debate yet, the rumor mill was at work in what could only be described as overtime conditions. It was a sort of third rail of discussion and chatter, paralleling the principal expressions of sadness over the passing of a beloved member of the highest court, loved even by his liberal colleagues, and the secondary discussion which instantly raised the specter of what some fear will be a bloody battle over Scalia’s successor.

That Republican debate, which began at 9:00 p.m. EST time on CBS, despite a combativeness highlighted by brutal firefights between businessman Donald Trump, former Florida Governor Jeb Bush, Texas Senator Ted Cruz, Florida Senator Marco Rubio, opened with a remarkably somber, highly decorous discussion of the passing of Scalia, and what the death of the formidable conservative voice might portend for the future of the U.S. Supreme Court.

Though there was minor disagreement over whether President Obama had the authority to nominate a replacement, there was almost universal harmony in the room that GOP lawmakers should take a stand to fight the President on a replacement, or—at the least—push back hard against any nominee not anchored in an ideological footprint in the vicinity of strict constitutional conservatism (which is not quite the same as political conservatism).

Several of the Republicans on that stage in Greenville, South Carolina said that Obama does not have—or, at least, should not exercise—the executive option to choose a replacement for Scalia. They cited the roughly 60-year-old tradition that says that so-called lame duck Presidents—those in their last one year in office—generally defer picking a replacement to retirees or sudden vacancies, kicking that can down the road and into the hands of the incoming President.

Obama says the search is already on, and on Monday Democrats in Washington and some White House sources were telling reporters that the short list has already been drawn up. They also say that a President, any President, can move as soon as possible to start picking a replacement for a justice, and suggest that GOP lawmakers have no reason to expect a delay, much less deferment. But in this case, Republicans are insisting on precisely that. Obama, whose last day in office would be roughly 11 months from now, should leave the Supreme Court alone, say GOP lawmakers, and he should simply pass that baton to whoever gets elected in November.

Democrats reacted with revulsion and derision, suggesting that GOP lawmakers and candidates are crazy if they think that Obama will not move decisively and swiftly—presumably in an orderly process and after careful vetting—to nominate a successor to Scalia. The usual battle lines are drawn.

In many political observers’ eyes, the stakes could not be higher. That his death came in the exact Middle Act of what has become for both major political parties arguably the most contentious Presidential election in generations is both ironic and almost Shakespearean. As if we don’t already have enough to argue about over dinners, in debates, and on social media.

Scalia, who died in his sleep at the age of 79 over the weekend, was an indomitable force for the conservative majority, and often cited as the brains behind most court decisions which tilted right. Scalia was also known as the voice of sometimes intellectually scathing dissents when the court occasionally tilted left, typically as a result of a single defector from the perceived conservative side of the table. Scalia, first appointed to the high court by Ronald Reagan, generated opinions which were anchored deeply in what he understood to be the limited, narrow role the court should play in the template of American politics and society. Scalia believed that elected legislators should do the legislating, not courts, and he rarely approached an issue before the court without first insisting that the question of constitutional intent be sufficiently resolved. He was skeptical of any case in which the court was being asked—either directly or by dint of approval—to make or enforce the law.

Liberals and progressives see Scalia’s untimely passing as an opportunity for Obama to get one last thing right by nominating either a fellow-progressive, or at least someone who will behave with less inflexibility on constitutional interpretation than Scalia.

Republicans and Democrats see a kind of doomsday scenario in which everything might come into play—gun control, abortion, same sex marriage, health care, Obamacare, immigration, Citizens United, you name it. Conservatives are especially tensed for battle, suspecting that the narrow balance of the current court, if Obama has his way, will tip sharply left, bringing about an unravelling of many cultural and political constructs, and acting as a facilitator and validator of dozens of liberal and progressive legal thrusts.

This fear factor triggered, sadly, that inevitable third rail of chatter within only hours of Scalia’s passing, and within minutes of Obama’s Saturday night press conference in which the President said he plans to begin the process of vetting Scalia’s replacement. Call it the Supreme Court Conspiracy narrative. Was the 79 year old Scalia the victim of a nefarious plot to skew the court leftward in what little time Obama has remaining of his Presidency? Those parlor games began in earnest on social media, and had already begun to coalesce around varying “grassy knoll” theories by midday on Sunday. Some news sites were already offering polls for online readers to weigh-in on the possibility, asking readers to answer whether they think foul play was involved. Poisoning? Why not, one theorist asked, since what better venue to take out a Supreme Court justice than an isolated hunting lodge where something fatal could be slipped into his dinner.

So far, the facts don’t support the alleged deeds suggested in the farfetched theories being presented. Scalia appears to have died of natural causes, and no less than Texas Governor Greg Abbott, a conservative Republican, has weighed-in on the matter, confirming what local and state authorities have concluded: Scalia died in his sleep.

Scalia, who was known to be slightly overweight but generally healthy otherwise—not to mention reasonably physically active even for the typically busy standards of Washington—had been vacationing at the posh Cibolo Creek Ranch in West Texas over the weekend, where he had joined a hunting party of about a dozen others. According to those who were around him that day and afternoon, Scalia had been doing fine until sometime in the evening when he said he wasn’t feeling well. He excused himself to either take a short nap or go to bed early (depending on the accounts), and was last seen entering his room at the lodge.

In the morning, the rest of the hunting party rose as planned, ate breakfast, but saw no sign of Scalia—assuming reasonably that the justice was simply sleeping late after not feeling up to snuff the night before. They agreed to let him sleep late, and the rest of the party went on their way. The plan was that Scalia could catch up with them later in the morning.

But after waiting about two full hours for Scalia to appear in the kitchen or dining room, the proprietor of the ranch, John B. Poindexter, decided he had better check on the justice. After knocking several times, Poindexter entered the room, and found Scalia on the bed with his hands folded across the top of the sheets, his body and arms in a strikingly peaceful position. Poindexter said it looked as if Scalia was simply taking a nap, and it appeared to him that he had died quietly and peacefully in his sleep.

Still, the whole thing was simply too ripe to avoid being co-opted by the zanier and paranoid side of the internet and the blogosphere, where scores of theories now abound—especially after rumors began circulating that Scalia’s body was found with a pillow over his head. The first mention of the “pillow factor” came on the news website My San Antonio, which had reported that Poindexter told some media sources that the judge was found with pristine, “unwrinkled” clothes and with a pillow over his head. But other reports quickly disputed My San Antonio piece, and dismissed the “pillow theory,” remarking that Poindexter had made so such claim about the pillow.

For the record: the pillow theory is not true, unless somehow it is proven that Poindexter or another person removed the pillow from on top of his head and put it under Scalia’s head in those first few minutes after police were notified. Besides, there is no reason to suspect that the White House can reach into West Texas to control the outcome of the preliminary medical examination, which clearly indicated that Scalia died quietly and peacefully in his sleep.  (There have been competing theories about why a full autopsy was not ordered in this case; family members, in consultation with Scalia's personal physician, decided against an autopsy).

But with the balance of the court now in play, and with the very real possibility that Obama will nominate someone with at least a hint of progressivism on their judicial resume, some conservatives smell a rat. Republicans will attempt to delay—as suggested by Donald Trump and other Republican candidates during their raucous Saturday night debate—as much as possible. Rubio, Cruz, Bush and others cited the vaguely-formed tradition of lame-duck chief execs waiting for the new President to make the choice.

The constitution makes it clear that the President has the authority to choose Supreme Court justices with the advice and consent of the U.S. Senate, and that has also meant in cases where a President selects a judge to fill a vacancy created by a death or retirement. Democrats seize this core principle as the mandate upon which Obama should act. Republicans counter by citing the tradition, which experts argue is neither official nor mandated, the a lame-duck President defer the decision to the next chief executive.

The Republican argument is based on the fact that the last time the same scenario came up was in 1968, when Lyndon Johnson—who had already opted to not seek reelection—nominated associate justice Abe Fortas to be elevated to the role of Chief Justice, a move which a coalition of Republicans and Southern Democrats blocked. In 1987, Ronald Reagan nominated current justice Anthony Kennedy to the court, but only after his first choice—Robert Bork—was shot down by Senate Democrats in a bitter, epic fight. But Kennedy’s nomination was official in November 1987, one full year before the next Presidential election. In other words, neither case serves to set precedent, nor offer guidance.

In Saturday’s GOP debate, Marco Rubio and Ted Cruz each offered the historical factoid that no lame-duck President has nominated a replacement to the court in 80 years, though legal experts say that is an exaggeration, citing instead the vaguely worded so-called “Thurmond Rule,” crafted by Senator Strom Thurmond in the 1940s and intended to thwart FDR (or his presumed successor at the time, Harry Truman) from making a game-changing appointment to the high court. The Thurmond rule simply states that the Senate should not acquiesce in any high court nominating process during the “last six months of a lame-duck Presidency.” But that “rule” is neither official nor binding, and besides, Obama has clearly more than six months to pick a replacement, and the White House has already started circulating the short list of those for whom the President has taken an interest.

Still, the fight is already being waged—weeks, perhaps, before Obama even hints as who he has chosen. If you thought the Affordable Care Act was an epic battle, just wait. We suggest earplugs and safety glasses if you plan to visit Washington during the next four months or so—and leave the kids with the grandparents. It could get nasty.

Related Thursday Review articles:

Republican Candidates Engage in Explosive Debate on CBS; R. Alan Clanton; Thursday Review; February 13, 2016.

Democratic Debate on PBS: Wall Street Still a Thorny Issue; R. Alan Clanton; Thursday Review; February 12, 2016.