Could Justice Antonin Scalia’s Death Lead to a Constitutional Crisis?

[KamaAina]

http://www.slate.com/articles/news_and_politics/politics/2016/02/justice_antonin_scalia_s_death_may_lead_to_a_constitutional_crisis.html

The last Supreme Court Justice to die in office was William Rehnquist, who passed away on Sept. 3, 2005. By the end of the month, President George W. Bush had picked his replacement—John Roberts of the D.C. Circuit Court of Appeals, originally named to fill Sandra Day O’Connor’s seat—and the Senate had confirmed it.

In theory, we could move at the same speed. There is no question the Obama administration has a short list for Supreme Court appointments, and there’s nothing in the Constitution that precludes a president in his final year from selecting an associate justice for the court. After all, a president doesn’t disappear after seven years. Barack Obama is still the legitimate executive of the United States government with all the authority that brings.

But modern American politics is a polarized place, and there’s a stark ideological divide between liberal and conservative jurists. To replace a Republican appointee like Scalia with a Democratic choice is to transform American jurisprudence, pulling it back from the conservative turn of the past 30 years, and swinging it to the left. If the 2014 elections were different—had Democrats turned out to save the Senate from a second Republican wave—then President Obama and his allies could have played a repeat of 2005, quickly bringing a new justice onto the court.

But the Senate is held by a firm Republican majority. And unless it wants to immolate itself in the flames of conservative fury, that majority will block Obama’s nominee, regardless of skill, belief, or reputation. The stakes are so high that Obama could nominate the ghost of Thurgood Marshall turned flesh and the Republican Senate would reject him as a matter of course.

[no_hypocrisy]

1. Yes.

Worst Case Scenario(s):

1. As long as there is a republican majority in the Senate, either no judge nominated by a democratic president will be confirmed or only a radically conservative judge can be nominated and confirmed.

2. As long as there is a republican majority in the Senate, the Chamber would allow a vacancy, perhaps more, until a republican president can be installed, I mean elected. I'm talking years without a full nine-member panel on the Supreme Court.

3. As long as there is a republican majority in the Senate, any democratic president will be enough justification to obstruct. Race, gender, ethnicity, religion may be the reason implied or given, but just not being a republican will be enough.

[TreasonousBastard]

2. Like Eisenhower or Johnson had no problems with Congress...

If we don't have a constitutional crisis at least every six months, we're not trying.

[Nye Bevan]

3. Nope.

President Obama has a right to nominate someone. The Senate has the right to vote yes or no to that nominee. Whatever happens there will be no "crisis"; things will just keep trundling along.

[KamaAina]

4. But does it have the right to not even hold a vote?

[ManiacJoe]

5. The constitution does require that a vote be held.

However, given the current process for hearings and such, it could be dragged out for a long time.

[dumbcat]

8. No, it doesn't.

Show me where it requires a vote.

It says:

The President shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The only SHALLs apply only to the President, not the Senate. There is no "the Senate shall" do anything.

[ManiacJoe]

9. "by and with the Advice and Consent of the Senate"

That phrase requires an action by the Senate.
The Senate is not required to vote "yes", but it is required to eventually vote.
Or at least have a subcommittee say "try again".

[dumbcat]

10. Nope. No action required

There is a reason the drafters said "shall" in some places. It forces an action (but notice it doesn't say "when&quot . There is no "the Senate shall" involved, and also no required timeframe.

You may continue to make up your own rules of English grammar, but I am not listening.

[ManiacJoe]

11. Interesting.

I was about to make the same comment to you.

[gratuitous]

6. Certainly they don't have to hold a vote

But the example Republicans usually pull out is Robert Bork, the man who served as Nixon's hatchet man when Nixon wanted to fire special prosecutor Archibald Cox for getting too nosy about Watergate. After Attorney General Richardson and Deputy AG Ruckelshaus both resigned rather than carry out Nixon's order, Bork stepped up and fired Cox. A little more than a decade later, when Reagan wanted to name Bork to the Supreme Court in 1987, Senate Democrats warned him against that, as feelings were still pretty sore about that whole things.

President Reagan (or someone in his administration) decided he needed to poke the Senate in the eye, and nominated Bork anyway. At his committee hearing, Bork expounded on his demented views of the Constitution without reservation or moderation. The Senate Judiciary Committee, chaired by Sen. Joe Biden, voted not to recommend Bork 9-5. Ordinarily, that would have been the end of Bork's nomination, but the Republicans weren't going to sit still for that, and demanded an up-or-down vote from the full Senate. Bork lost again 58-42, becoming St. Robert of the Put-Upon, the man unfairly denied his right to sit on the Supreme Court and enjoy his intellectual feast.

So, when your conservative friends talk about "payback" for Bork, remind them that Bork got a committee hearing, was voted down by the committee, and still got a floor vote from the full Senate. Will today's Senate extend the same courtesies to President Obama's nominee?

[KamaAina]

7. What conservative friends?

Well, there's Republican Stepdad, of course, but he's not really that extreme.