After Scalia: The Coming Clash of the Executive and the Legislative Branches over the Judiciary

Saturday afternoon, Supreme Court Justice Antonin Scalia died.

I was having dinner with friends at Farpoint. One of my dinner companions happened to look over at the flatscreen televisions hanging over the bar at Northern Lights, and she audibly gasped. “Scalia died.” The rest of us turned, looked, and gibbered things like “Wow” and “Damn.” I pulled out my phone and made a quick Facebook post: “Quick thought on Scalia. I harbor doubts the Senate will confirm a replacement before the election. McConnell would say the next president could, hoping that the next president is a Republican.”

I was not at all surprised when I discovered shortly after that that several Senators, including Ted Cruz, Mike Lee, and Majority Leader Mitch McConnell had already made statements that President Barack Obama shouldn’t be allowed to replace Scalia. I had expected an action like this; just two months ago, I wondered aloud if a Republican Senate would confirm any court nominees in the next administration, if Hillary Clinton or Bernie Sanders were to win: “I can sadly envision a scenario where the Supreme Court stands at 6 justices by the end of the next president’s first term due to a refusal by a Republican Senate to confirm replacements.” Who was to think that such a thing would happen now?

In The Atlantic, Conor Friedersdorf looked at why Cruz’s stance is illegitimate and counter to the Constitution he claims to venerate. Then there’s Mitch McConnell’s stance; he says that the American people should have a say in the next Supreme Court justice, but the American people did have a say when they elected Barack Obama to another four-year term in 2012. Then there’s the fact that Anthony Kennedy was confirmed to the Supreme Court in a presidential election year; just because there’s an election doesn’t remove the President’s right to nominate a court justice, nor does it absolve the Senate of its duties. There simply is not a rule, either written or unwritten, that a Supreme Court nomination in a presidential election year is illegitimate; the Republicans are making shit up to give their position a reasonable-sounding cover.

This is not to say that I expect the Republicans in the Senate to consider a Supreme Court nomination. The Constitution says they must give “advice and consent”; if they withhold consent by not scheduling hearings or votes, they have that right.

This won’t trigger a Constitutional Crisis, as Paul Krugman suggested this morning in the New York Times. But it is a profound test of the ability of the American political system to function. Presidential democracies are prone to fail, as political scientist Juan Linz pointed out a number of years ago. The problem with presidential democracies is that the executive and legislative branches derive their legitimacy separately, and there’s no way to resolve the tension between them when they come into conflict, such as when a president has to make a nomination for the Supreme Court but the Senate is unwilling to consider any nominee.

Some, like Mark Joseph Stern and Ezra Klein, think that McConnell and his Republican allies have overreached by their blanket refusal to consider a nominee. Maybe. It probably isn’t in the Republican Party’s best interests to make the Supreme Court vacancy an ongoing issue the closer we approach the November elections. But, I harbor doubts. The Supreme Court is a pretty nebulous issue for most people. Heck, ten percent of college graduates think Judge Judy is a Supreme Court justice.

I expect Obama to fulfill his constitutional duty, as he says he will, of nominating a replacement for Scalia. I’ve seen a number of suggestions proferred; Michael Tomasky has a list, so does NPR.

I also expect Mitch McConnell and Judiciary Committee Chairman Chuck Grassley to treat the nomination like McConnell and Budget Committee Chairman Mike Enzi treated Obama’s budget last week — not worth their time or effort.

How this develops over the next few months will be endlessly fascinating. I am not filled with optimism.

Published by Allyn

A writer, editor, journalist, sometimes coder, occasional historian, and all-around scholar, Allyn Gibson is the writer for Diamond Comic Distributors' monthly PREVIEWS catalog, used by comic book shops and throughout the comics industry, and the editor for its monthly order forms. In his over ten years in the industry, Allyn has interviewed comics creators and pop culture celebrities, covered conventions, analyzed industry revenue trends, and written copy for comics, toys, and other pop culture merchandise. Allyn is also known for his short fiction (including the Star Trek story "Make-Believe,"the Doctor Who short story "The Spindle of Necessity," and the ReDeus story "The Ginger Kid"). Allyn has been blogging regularly with WordPress since 2004.

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