How Obama Can Replace Scalia

by Benjamin Studebaker

Today Supreme Court Justice Antonin Scalia died unexpectedly in his sleep after participating in a quail hunt. I extend my sympathies to his family and to the conservative movement, which has lost one of its titans. Nevertheless, I am a political writer, and my role is to write about politics. So what are the political implications of Scalia’s death?

Scalia was politically perhaps the most conservative justice on the court, though he had softened a bit with age. Using Martin-Quinn scores to measure justices’ left/right leanings (on the chart, left is down, right is up), Scalia in his later years was more conservative than Roberts or Kennedy, but not quite as far to the right as Alito or Thomas:

Nevertheless, Scalia has taken a variety of quite extreme stances over the years. Here are just a few:

  • In the 1992 Planned Parenthood v. Casey case, Scalia dissented, arguing that the constitution does not protect the right to an abortion.
  • In 2000, his deciding vote in the 5-4 Bush v. Gore decision blocked a Florida recount that might have given the presidency to Al Gore.
  • In 2003, he dissented in Lawrence v. Texas, arguing that states were entitled to criminalize sodomy if they so chose.
  • In 2010, his deciding vote in the 5-4 Citizens United v. FEC case opened the door to a new influx of money into American politics in the form of super PACs.
  • In 2014, he dissented in King v. Burwell, arguing that millions of Americans should have their health insurance revoked over a pedantic reading of the Affordable Care Act.
  • In 2015, he dissented in Obergefell v. Hodgesarguing that states are entitled to deny LGBTs marriage rights.

President Obama does not leave office until January 20. This means that Obama has 11 months to nominate a new Supreme Court justice and get that nominee confirmed. If you’re wondering whether this gives him enough time, the answer is probably yes. Since 2000, it has never taken a president more than 6 months from the date of retirement or death to get a justice replaced, and the last justice to die in office–William Rehnquist–was replaced in just one month:

Scalia Replacement

However, all of these justices were replaced with the president’s party controlling a majority in the senate. Supreme Court nominees require 50 votes. While it remains technically legal for a Supreme Court nominee to be filibustered (in which case 60 votes are required to override), no Supreme Court nominee has ever been subject to a filibuster.

Currently the democrats have 44 seats in the senate, with 2 independents that both caucus with the democrats. This means they can rely on 46 votes. This means they would need 4 more votes–if they can get to 50, Vice President Biden can break a tie. Barack Obama’s past court nominees have each received a few republican senate votes. Elena Kagan got the support of 5 republicans, while Sonia Sotomayor got the support of 9. However only three of those republicans remain in the senate today. They are:

  • Lindsey Graham (R-SC), who recently withdrew from the presidential race and voted to confirm both Sotomayor and Kagan.
  • Susan Collins (R-ME), who voted to confirm both Sotomayor and Kagan.
  • Lamar Alexander (R-TN), who voted to confirm Sotomayor but opposed Kagan.

All three of these republicans were re-elected in 2014 and do not have to fear challenges from the right in primaries until 2020. Collins is said to be considering a run for governor of Maine in 2018. Maine has been a blue state in presidential elections since 1988 and Collins has a reputation for being a moderate. In 2014 she was re-elected with 68% of the vote. It is reasonably likely that Obama could potentially get the support of these three. If so, that would bring his vote total up to 49. He would need one more republican.

Who are the most likely republicans to defect? I’ve drawn up a short list of republicans who have developed relatively moderate reputations since 2010:

  • Kelly Ayotte (R-NH) was elected in 2010. Ayotte is up for re-election this year, but she’s running in the state of New Hampshire, which has been blue in presidential elections since 2000. That said, she overcame a contentious primary in 2010 against a Tea Party rival, and may be unwilling to risk another challenge.
  • Mark Kirk (R-IL) was also elected in 2010. He has also worked across the aisle on environmental policy. He will be campaigning for re-election in Barack Obama’s home state, which has been blue since 1988. In 2010 he won a narrow victory over his democratic opponent, and since he’s running for re-election in a presidential year when Illinois democrats are likely to come out in force for their nominee, this might be a good opportunity for him to endear himself to them.
  • Lisa Murkowski (R-AK) was re-elected in 2010 by write-in vote after her party rejected her in favor of a Tea Party candidate in the primaries. This has made her fearless and much more willing to deviate from the party line.
  • Dean Heller (R-NV) was elected in 2012. Like Kirk, he won a narrow victory over a democrat and this forces him to play to the middle. Unlike Kirk, he is not up for re-election until 2018 and will have more flexibility to vote as he pleases.

If Obama can get Graham, Collins, and Alexander on side, he needs just one more of these four.

However, politics is changing and becoming more polarized. If things work the way they have historically, Obama has a strong chance of getting a reasonably left leaning nominee narrowly confirmed. Given that we are dealing with the senate rather than the house, there’s a good chance Obama can find the votes. But if the republicans are willing to violate hundreds of years of precedent and obstruct a nominee with a filibuster, or if senate republicans are much less willing to cooperate with the president than they were in 2010, things could remain unresolved for some time. That said, it would be a risky move for senate republicans, because a protracted fight could be used by the democratic nominee in the 2016 presidential race to highlight republican obstructionism. In the meantime, any Supreme Court decisions that are 4-4 result in no ruling being issued–the lower court’s rulings are instead upheld.