Selecting Scalia’s successor

US Supreme Court Justice Scalia’s death came at a crucial time with important cases waiting final decision

The death of US Supreme Court Justice Antonin Scalia has brought the least visible branch of the American federal government to the forefront in the upcoming presidential election this year. US Supreme Court justices are appointed for life; hence the president’s nominee will shape the direction of the Court for decades. When a Supreme Court seat is vacated, the president has the responsibility to appoint a successor subject to Senate confirmation. Barack Obama has about 330 days from now to get an appointee confirmed before leaving office. There is plenty of time, but the appointment won’t come without a fight. Within hours of Scalia’s death, the president’s political opposition made its position clear. Senate Majority leader Mitch McConnell promised to block whomever Obama nominates and inferred that the next elected president should handle the nomination.

Whatever the outcome, Obama or his successor has an opportunity to achieve the first liberal Court since the 1960s. Conservative Republican presidents have been successful in controlling the majority of appointees for 50 years. Pro-corporate and anti-worker judgments have become more prevalent with each passing decade, although there were recent signs of warming towards key liberal positions, like the support for healthcare. Justice Scalia’s passing came at a crucial time with important cases regarding reproductive rights, labour rights, immigration and climate change awaiting final decision.

Before Scalia’s demise, the nine justices of the US Supreme Court were divided by a five-four conservative majority which resulted in a series of decisions influenced by a conservative interpretation of the law. Presidents like Richard Nixon, Ronald Reagan and George W Bush, all appointed conservative justices. As a result of the lengthy period of imbalance, the Supreme Court has drifted ever further to the right. Just the absence of Scalia’s vote on sensitive issues such as gun control and abortion could result in a change in verdict.

In the case of a four-to-four split decision, the Court most often issues a ruling to support the lower court’s decision. There are 10 per cent more Democratic appointees than Republican appointees in the lower appeals courts. Most frequently, nominations take place in the beginning of a president’s term. Liberal justices resign, at the start of a Democratic presidency and conservative justices tend to resign at the start of a Republican presidency, thus allowing the president to pick like-minded successors.

The US Supreme Court serves as the solution to gridlocks. For instance, during the 2000 presidential election, there was a gridlock over the tight results and suspected voter fraud. The issue was eventually taken up by the Supreme Court. Even though many disagreed with the Court’s ruling to halt the vote recount, its decision effectively gave George W Bush the presidency. The decision was accepted since the US Constitution is absolute and the Supreme Court is considered its voice.

American politics are more polarised than they have been in decades. Obama, or his successor, is in a position to define the ideological balance of the Supreme Court and also to transform US law for a generation. With a now evenly divided court, Scalia’s replacement will have exceptional power to reshape application of the laws and set a lasting legal precedent. There is no doubt that there are high stakes at play in the US presidential election, which are now more apparent than ever.

Published in The Express Tribune, February 22^nd,  2016.

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