Will the U.S. Senate play politics with the Supreme Court vacancy?

February 17, 2016

Justice Scalia

As you know, on February 13, 2016, Supreme Court Justice Antonin Scalia passed away in his sleep while on a hunting trip.That leaves eight justices on the Court: four conservatives and four liberals. There are many cases on the Courts calendar this term that are set for oral argument and decision. They involve important issues that affect all Americans including contraception, affirmative action in education, voting rights, abortion and immigration.

Over the pastsixty years, over 1,000 cases before the Court have been decided by a 5-4 vote. A tie vote (4-4, for example) results in no decision and leaves the lower court ruling in place. That ruling only applies to the statesthat it has jurisdiction over,not for the entire country.

The federal Constitution requires the president to name a replacement when a vacancy occurs. The nomination goes to the Senate for approval either a confirmation of the nomineeor rejection. Unfortunately, there is no time limit for either of these responsibilities. However, it is the sworn duty of senators and the president to act within a reasonable period of time and not delay or stall the proceedings for political gain.

It wasnt twenty-four hours after Justice Scalia passed before Republicans swore to stop all efforts at filling the vacancy until a new president is sworn in. That wont occur until January 20, 2017! That would mean more than a year without the required nine justices on the bench. Politics should not enter into the equation, but we have to be realistic. Had the founding fathers wanted a delay when a justice leaves the bench during a presidents final year in office, they would havesaid so inthe Constitution. We suspect Justice Scalia (a Republican) would be against a years delay in the process in the hopes of the next president being a Republican. After all, he was the ultimate constitutionalist or, as he referred to himself, an originalistwhen it came to interpreting the Constitution.

Theres very little in our lives that isnt affected in some manner by politicians. We can hope for an expeditious handling of this vacancy, but were not holding our breath.

Photo by Stephen Masker (Flickr)

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Judge Tom

Judge Tom is the founder and moderator of AsktheJudge.info. He is a retired juvenile judge and spent 23 years on the bench. He has written several books for lawyers and judges as well as teens and parents including the recently published ‘Teen Cyberbullying Investigated’ (Free Spirit Publishing). When he’s not answering teens’ questions, Judge Tom can be found hiking, traveling and reading.