Unless you live under a rock--and hey, I'm not judging--you heard that Justice Scalia passed away over the weekend. This has opened up even more craziness than the current election cycle had going for it already, if such a thing is possible. Lawyers and anyone aware of the average human lifespan have long been aware that the next president will probably be picking 2-3 justices, minimum, but this seems to have come as a surprise to our presidential candidates. Huh.
Anyway, now what?
Justice Scalia's vote will be removed from any decision that had not been published at the time of his death. The Supreme Court's decisions are not official until they are published, and--as we recently discussed in PARA 101--it's not unusual for a justice to change his or her mind, even at the very last minute. Since dead justices cannot vote, his vote will simply be stricken from any unissued decision. If that means that the decision is now 4-4, the lower court ruling will stand. The Supremes need a majority to overturn a lower court decision.
Can they opt to re-hear the case once they have the full complement of 9 justices? Sure, but who knows when that will be?
Can Obama nominate someone even though he's a lame-duck president? Of course. I have no idea where certain senators have gotten a different idea. Realistically, given the climate in the Senate, his nomination stands a slim chance of being approved. But he can nominate someone on his last day in office if he wants. The nomination process takes a while, even under the best of circumstances. Rest assured that there is a staff member or a committee that has had an eye on people already for just this sort of contingency. Those people will be contacted to assess their interest, their backgrounds will be thoroughly vetted, and they will be given practice interviews to prepare them for the process of appearing before the Senate.
Incidentally, while I have never made a secret of the fact that I disagreed most strongly with Scalia on points of law, I have always marveled at his ability to bridge ideological gaps in his personal life. His closest friend on the court was Justice Ginsburg, probably our most liberal justice, and I just learned today that he was a strong advocate for Justice Kagan, another liberal and my personal favorite.
May the Lord grant the family and friends of Justice Scalia fortitude and grace to bear the loss this great American.
ReplyDeleteHowever, my dream is that there will be a day that no one would worry about the ideological belief or persuasion of anyone that would be a nominee for the Supreme Court.
My dream is that there will be no fear from any quarter about the balance of ideology in Supreme Court.
There will be no Justice with either liberal or conservative ideology, but all will see the law, the constitution and its interpretation from the same point of view.
My dream is that one day, the members of the Senate would not think or imagine that allowing a sitting United State President constitutional responsibility to nominate and replace a Justice of the Supreme Court will not be a good idea for any reason.
I honestly hope that our agreement or disagreement should be strictly on the rule of law and proper interpretation of the constitution that is devoid of ideology or partisan coloration
So if I understand correctly, there is no deadline by which a new justice needs to be decided upon? The Supreme Court can operate indefinitely with an empty seat? Interesting.
ReplyDeleteNo, there is no deadline. Maybe there should be, the way the president has a deadline to veto legislation. But that would take an amendment to the Constitution.
ReplyDelete