The Supreme Court: Constitutional Crisis!


The death of Justice Antonin Scalia has plunged the political world into turmoil.  According to The United States Constitution,  the President has the responsibility of  nominating a successor when a  vacancy occurs on The Supreme Court.  The Senate has the responsibility to advise and consent on the nominee.    The senate  Judiciary Committee considers the nominee first and passes their recommendation to the full senate. There has never been a time in our history when the senate has refused categorically to fulfill their required role.  Until now!


On the night of Scalia’s death, Mitchell McConnell, Republican Majority Leader of the Senate, said that the nomination of a successor should occur after the presidential election in November 2016. He vowed that   any nomination from Barack Obama would be blocked and  not acted upon.  Ted Cruz and Marco Rubio, presidential contenders agreed immediately, while Hillary Clinton, running on the Democrat ticket said from Colorado the same night, ‘ A call to delay a nomination is totally out of step with our history and our constitutional principles.’The battle was joined.


Antonin Scalia, the leader of the conservative  bloc of Justices, would find this entire scenario supremely ironic –or perhaps hilarious.  He had a devilish sense of humor.  Scalia  believed fiercely in the concept of Originalism, interpreting every word of  The Constitution exactly as it had been conceived and written by the  men who argued  throughout  the long hot summer of l787 in Philadelphia.  For Scalia, original intent  was  bedrock to  his  interpretation of all cases before the Court.  He wrote in elegant and often devastating  language, sarcastically assailing  the arguments of his colleagues if they dared to present a more “elastic” interpretation of wording or a particular passage in the Constitution.   Just Imagine his reaction to McConnell’s vow to disregard and block  the fundamental power of  the President to nominate his successor!


The exact words can be found in Article II, Section 2 of The Constitution describing “Power of the executive, with the Advice and Consent of the senate,  to appoint  Ambassadors, Ministers , Consuls and Judges of the Supreme Court…..” Perhaps this section should be required  reading  for the Majority Leader and the Republican candidates for President.


As the presidential campaign moves forward, all the Republican candidates have lined up with McConnell saying the next president should nominate a successor to Antonin Scalia.   They are banking on their party winning the election.  They argue that the will of the people should matter.  Of course, the will of the people elected Barack Obama by large margins in 2008 and 2012.  Hillary Clinton and Bernie Sanders have spoken out vociferously that the Constitution must be followed.  They cite the thirteen  times in our history when a President has named a nominee to fill a vacancy on The Supreme Court during his last year in office. This is not something new.  Ronald Reagan (Republican)  is the most contemporary , nominating  Anthony Kennedy , who was confirmed by a Democratic Senate.  There has never been a time when  the Senate refused to even consider the President’s choice.


There are  men and women whose names are being raised as possible nominees.  They include:  Sri Srinivasan ,  Judge on the influential Appeals Court of the D.C. circuit.  The 48 year old  son of Indian immigrants,  he was confirmed 97-0 in 2013 by the senate.  Stanford Law School.   He worked in the Solicitor General’s  Office for both George Bush and Barack Obama.  Jane Kelly,  51, Judge on U.S. Court of Appeals , 8th Circuit, confirmed 96-0 by the senate in 2013.   Harvard Law  School.  Long time public defender in Iowa.  Close to Charles Grassley, Chair of the Senate  Judiciary Committee.  Could help her reach a hearing. Adalberto Jordan,  54, Judge on U.S. C ourt of Appeals, 11th Circuit,  confirmed  94-5 in2012 by the senate.  Hispanic,  University of Miami School of Law. Clerked for Justice Sandra Day O’Connor.  Home state Florida has a senatorial election this year, important swing state. Paul Watford, 48, Judge on the U.S. Court of Appeals for the 9th Circuit.  African-American born in California. UCLA School of Law.  Clerked for Justice Ruth Bader Ginsburg. Confirmed 61-34 with nine Republicans voting in favor. Former federal prosecutor  who represented corporate clients  in private practice.


President  Obama has already nominated two highly qualified women who are now Justices on the High Court. Sonia Sotomayor and Elena  Kagan were confirmed by the senate after lively questioning by Republicans  on the Judiciary Committee.   If the Republicans now refuse to even allow the President’s nominee to meet with the Judiciary Committee, they could precipitate a nation wide uproar.   There are literally millions of  new potential voters who have been attracted to the Republican and  Democratic presidential campaigns this year.  Rallies have brought  thousands of young women and men into the political world.  What would be their reaction to this  obstruction of The U.S. Constitution.?  Would they be turned off from voting?  And older men and women voters –who are the bedrock of every campaign —would be shocked to the core.  Would they decide to stay home in November as a protest? One thing is for sure.  A Constitutional Crisis would reverberate from now to election day in November.


Here’s a prediction:  If McConnell sticks to his threat and does not allow President Obama’s nominee  to be considered by the Judiciary Committee, there will be a political TRIFECTA  in November 2016.   The Democrats will capture the Presidency by large electoral and voting margins.  The Senate will return to Democratic control with current “endangered” Republican senators losing their seats.  Many Tea Party seats in the House will return to Democratic candidates.


Epilogue:  Once the next President is installed, she or he will nominate a candidate to fill the vacancy on The Supreme Court.  The Democratic Majority Leader of the Senate will send that name to the Democratic Chair of the Judiciary Committee for their consideration.

2 thoughts on “The Supreme Court: Constitutional Crisis!

  1. Again, a wonderful analysis of what is happening with the status of the Supreme Court since Antonin Scalia’s death. Thanks for simplifying the whole issue! Always well done.

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