JUSTICE SCALIA'S DEATH CHANGES EVERYTHING!

On October 5, 2015 journalist Kimberly Atkins published an article in the Boston Herald headlined: Next President will name as many as four Supreme Court justices." While this fact has hung over the 2016 election from the beginning, its consequences have not developed much traction until Justice Antonin Scalia was found dead on February 13 at a resort in West Texas. The political world instantly exploded as activists on opposite sides of the political spectrum began arguing about who should nominate Scalia's replacement, and when that nomination should be submitted.

Justice Antonin Scalia, nominated by President Reagan in 1986, was the champion of "originalims," a theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution. Scalia was the unquestioned dominant leader of the conservative majority on the court. Given current political realities, and what political leaders believe is at stake, the 5-4 conservative majority could quickly turn around if President Obama manages to replace Scalia with a Justice more to his liking.

The Republican opposition argues that a lame-duck President should not nominate a Supreme Court Justice during an election year. They submit that this should be left to the next President. Every Republican candidate for President subscribes to this position, and Senate Majority Leader Mitch McConnell announced that the nomination process should be delayed until the next President is inaugurated. Presidential candidate Ted Cruz, a sitting member of the Senate Judiciary Committee, which would need to send the nomination to the floor of the Senate for discussion and an up or down vote, vowed to filibuster any Supreme Court nomination President Obama would submit. Whether the obstructionist strategy will ultimately succeed may depend on what candidate Obama submits, and to what extend Senators facing tough re-election battles judge that supporting this strategy could backfire with independents and moderate  Republicans in their states.

Not surprisingly, Democratic candidates for their party's nomination have called Republican calls to block any nomination by President Obama "outrageous." Hillary Clinton asserts that 'the Senate has a constitutional responsibility that it cannot abdicate for partisan political reasons." She continued: "The longest successful confirmation process in the last four decades was Clarence Thomas and that took roughly 100 days. There are 340 days until the next President trakes office, so that is plenty of time." Her rival, Senator Bernie Sanders, agrees. He believes that GOP threats are beyond his comprehension, and that Democrats need to rally people for leverage. Having said all this, Senate Minority Leader Harry Reid's presumed successor, New York Senator Chuck Schumer, in a speech before the American Constitution Society mid 2007, opined that the Senate did not only have the right but the duty to block Supreme Court nominees from  a lame-duck President. The only difference between then and now is the party controlling the White House and the Senate.....

Florida Senator Marco Rubio contends that it has been 80 years since a lame-duck President made a Supreme Court nomination. Actually, the last "lame-duck nomination" came from President Reagan when he presented Justice Anthony Kennedy in 1987, who was confirmed unanimously in 1988 - an election year. Prior to that nomination at least 13 justices have been confirmed during election years. All of the others were submitted prior to World War Two, when the politics of the Supreme Court were not as ideologically polarized as they are today. This polarization is at the crux of the current debate. Justice Ruth Bader Ginsburg, among others, has expressed a concern that the court was losing its independence and is being considered a political branch of the government. Several years ago she pointed at  the growing divisiveness of the judicial nomination process as evidence that political leanings were working their way into the system.

This entire discussion begs the question how the ramifications of Justice Scalia's death will impact the election process currently under way. Assuming that President Obama won't be able to muster confirmation of a nominee, the White House, the Senate and the Supreme Court are now up for grabs. Whoever controls the first two could be in a position to change the ideological make-up of the court for a long time to come. Besides, three other justices are in their late seventies and early eighties - all of whom might be replaced during the coming eight years. Electability of each party's nominee, if it was not an issue already with party regulars, now becomes more crucial. On the Republican side Ted Cruz, given his background as Constitutional Law Professor at the University of Texas Law School, and his clerking for Chief Justice William Renquist in 1996, may start getting an edge. After all, Donald Trump is not really looked at knowing much about constitutional law. On the Democratic side Bernie Sanders may become an electoral liability as salient issues begin to shift.

Senator Cruz commented that: "If we get this wrong, if we nominate the wrong candidate, the Second Amendment, life, marriage, religious liberty, everyone of those things hang in the balance." Party operatives like South Carolina Senator  Lindsey Graham tends to agree with the message, not the messenger. He said: "I hope conservatives will understand this is a wake-up call. You better nominate somebody who can get 270 electoral votes - Donald Trump can't, Ted Cruz can't." Both parties are hoping that a dynamic nominee will also help them claim a plurality in the U.S. Senate where this year 34 Senators are up for re-election (24 Republicans and 10 Democrats.)

Needless to say that, although the stakes really have not changed, their intensity, focus and perceived importance certainly have. Justice Scalia's death injected a renewed sense of urgency into the process of electing a new leader of the free world. Watch for the fireworks, This year's election just became more interesting.