Lengthy battle over Scalia replacement expected

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Members of the U.S. Supreme Court heard arguments on Oct. 5 in a case that pits government anti-discrimination law against the autonomy of religious groups to hire and fire employees on the basis of religion. Photo courtesy U.S. Supreme Court

Members of the U.S. Supreme Court heard arguments on Oct. 5 in a case that pits government anti-discrimination law against the autonomy of religious groups to hire and fire employees on the basis of religion. Photo courtesy U.S. Supreme Court

U.S. Supreme Court justices will hear arguments Tuesday (March 25) in the religious liberty case of the season.

U.S. Supreme Court justices will hear arguments Tuesday (March 25) in the religious liberty case of the season.

WASHINGTON — Justice Antonin Scalia’s sudden death will trigger a protracted battle over his replacement, one that may not end until 2017 after a new president is sworn into office.

The Supreme Court is down to eight members and must move forward with a heavy caseload with that number. As such, the court is effectively deadlocked, with four liberals and four conservatives — although Justice Anthony Kennedy often sides with the left.

That raises the stakes for the nation’s conservatives — in Congress and prominent legal circles — to derail any nominee President Obama puts forward. Within minutes on Saturday, Republican lawmakers and conservative legal experts were demanding that the seat remain empty until the next president is elected.


RELATED STORY: Justice Scalia found dead at Texas ranch


Once a period of mourning is completed for one of the country’s legal and judicial icons, however, the White House is sure to devote its attention to a key question: Is there a left-of-center nominee who could win confirmation in the Republican-controlled Senate?

One name heads that list: Federal appeals court Judge Sri Srinivasan, who Obama put on the U.S. Court of Appeals for the D.C. Circuit. That’s the traditional stepping-stone to the Supreme Court, and Srinivasan won unanimous confirmation with high praise from Republicans.

Other potential nominees include two of Srinivasan’s colleagues on that court, Judges Patricia Millett and Chief Judge Merrick Garland, who at 63 could be a moderate, compromise choice. Obama is fond of California Supreme Court Justice Goodwin Liu, but he likely would have a tough time getting confirmed, along with many others.


FROM THE ARCHIVES: Oct 7, 2013 – Scalia on heaven, hell, pope and gays


The most likely scenario at the moment would appear to be something familiar to everyone familiar with Washington: gridlock.

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

That same sentiment came from many Republican leaders, all of whom said it would be wrong for a liberal Democratic president to get to replace a conservative nominee of President Ronald Reagan during his final year in office.


RELATED STORY: Scalia: Constitution says government can favor religion


But the flip side is this: Without a replacement, the court will limp along with eight justices, risking deadlocks on important issues such as abortion (which comes up for oral argument next month) and immigration (which will follow in April), not to mention cases already heard on affirmative action, voting rights and public employee unions.

That raises the possibility of frequent ties on cases that would have gone conservatives’ way, 5-4, with Scalia on the bench. In those cases, the court’s ruling will uphold that of the lower court, but without nationwide precedent.

In the past, it has been difficult for the party opposing the president to block every nominee; at least some moderates in both parties believe it is the president’s right to pick the man or woman of his choice. So some Republicans might be inclined to vote for an Obama nominee, particularly if it’s someone with bipartisan credentials.

Srinivasan could be that person. Confirmed to the D.C. Circuit unanimously in 2013, the 48-year-old Indian-American jurist has worked in both Democratic and Republican administrations, most recently as chief deputy to the U.S. solicitor general, arguing cases before the Supreme Court. He might be the one person who could fill the 9th seat on the court before next year.


FROM THE ARCHIVES: June 2, 2015 – Scalia does a u-turn on religious liberty


In recent years, it has been difficult but not impossible for nominees from both parties to win confirmation. Obama’s choices, Justices Sonia Sotomayor and Elena Kagan, got 31 and 37 “no” votes, respectively. President George W. Bush’s picks, Chief Justice John Roberts and Justice Samuel Alito, got 22 and 42.

Besides Kennedy, who was Reagan’s third choice for a vacancy in 1987, the last justice to win unanimous confirmation was Antonin Scalia.

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  • Yoh

    A probable candidate who would be tough to justify blocking the nomination for would be Judge John E. Jones. He is a W. Bush appointee and lifelong Republican. But he also had enough sense to cut through ultra-partisan nonsense involving Creationism in Schools and the complete lack of coherent, sane or rational arguments to support gay marriage bans.

    Republican pundits are a bit overconfident if they think delaying things until after the election is going to help them. Their front runner has zero appeal to anyone besides angry white bigots.

  • CarrotCakeMan

    Delaying would show the American People the GOP will pull any dirty trick to get what they want, and will repel independent voters.

  • G Key

    Tomorrow’s News Today:

    “GOP Congress Passes Bill to ‘Fight Fraud’ of Independent Voters”

  • Sophie Fields

    Even if Obama appoints Jesus himself the Republicans will be against it and argue that Jesus is secretly Muslim and that’s why he’s being appointed by Obama, his equally secretly Muslim pal

  • Nick Cee

    You’re kind, no matter liberal or conservative are what’s polarizing this country. You’re right angry bigots and just as angry liberal bigots are those who stereotype on both sides. Just different sides of the same coin