Q & A about the fight over replacing Scalia

AP News
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Posted: Feb 23, 2016 3:32 AM
Q & A about the fight over replacing Scalia

WASHINGTON (AP) — The death of Justice Antonin Scalia and the vacancy on the Supreme Court has touched off a partisan fight in Washington over who should pick his replacement, President Barack Obama or his successor. Here are some questions and answers about the battle:

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What's at stake?

It's difficult to overstate the significance of Scalia's death. The Court had been split with four (generally) reliable conservatives on one side and four liberal votes on the other, with Justice Anthony Kennedy often the swing vote. Scalia's death takes away a crucial conservative vote. If he's replaced by a liberal or moderate Obama nominee, the balance of the court would change, with potentially enormous consequences for issues like abortion, union rights, immigration, and congressional redistricting.

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What happens first?

It's up to Obama to nominate a replacement. He has said he will do so.

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And then?

That's the big question. Republicans controlling the Senate — which must confirm any Obama appointee before the individual is seated on the court — say that the decision is too important to be determined by a lame-duck president and that voters in November's election should determine whether Scalia's successor is replaced by a Republican or a Democrat.

Democrats counter that the voters did have a say when they re-elected Obama in 2012.

Republicans also argue that the Senate's longstanding tradition is to not confirm justices in an election year, and they point to a June 1992 Senate speech by Vice President Joe Biden, then the Delaware senator, in which he argued that then President George H.W. Bush should not name a successor if a justice were to die or resign. Democrats note that in the most recent corresponding example, in 1988, Ronald Reagan appointee Anthony Kennedy was confirmed by a Democratic-controlled Senate. Senate Majority Leader Mitch McConnell, R-Ky., is adamant that "this vacancy should not be filled until we have a new president."

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So no vote?

Doesn't sound like it. McConnell wrote the Lexington Herald-Leader in his home state of Kentucky and said action in the Senate should be deferred until after the election.

Still, the prospect of simply sitting on a nomination all year seems to be making a few Republicans uncomfortable, especially those up for re-election in November. Several of them have offered conflicting comments. Judiciary Committee Chairman Charles Grassley, who is responsible for confirmation hearings and a vote to send any nominee to the full Senate, hasn't made it exactly clear what he will do. Grassley also is up for re-election in November.

Precedent holds that the committee could reject Obama's nomination outright or follow the tradition of the failed nomination of Robert Bork or the bitterly-fought 1991 battle over Justice Clarence Thomas and send it to the full Senate without actually approving it.

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What about the full Senate?

Even if a nomination were to be brought to the floor, it would surely be filibustered. That means Democrats, who control 46 votes, would have to win over least 14 Republicans to bring any nominee up for an up-or-down vote. Supreme Court nominations are one of the few remaining instances in which filibusters have been uncommon in the Senate. Bork, for instance, was defeated outright, while Thomas was confirmed with 52 votes — well short of a filibuster-proof margin. In 2006, Democrats forced a filibuster vote on Samuel Alito, though the outcome was never in doubt. Once Alito easily cleared the 60-vote threshold, he was confirmed by a 58-42 vote.

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What did Obama do as a senator?

Obama opposed both Roberts and Alito. And Obama also voted to filibuster Alito, which he now regrets.

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What's the bottom line?

The overwhelming likelihood is a failed nomination, and the Senate probably won't vote on it, either in the Judiciary Committee or on the floor.

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What if this year's Supreme Court deadlocks on a case?

Under the rules, the appellate court's ruling stands. That would mean lower court decisions such as one overturning Obama's executive moves on immigration would stand, while others, such as an appellate ruling backing up public employee unions in their right to assess dues, would be affirmed and go Obama's way. But court observers believe that Chief Justice John Roberts would likely order any deadlocked case to be reargued.