WASHINGTON — The unexpected death of Justice Antonin Scalia creates a complicated situation in Washington to determine his replacement on the high court.
Republicans are extremely unlikely to confirm anyone that President Barack Obama nominates in the final months of his second term to replace a justice considered a major pillar of modern conservatism — a position that top Republicans, Republican operatives, and presidential candidates already have made clear on Saturday evening.
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President," Senate Majority Leader Mitch McConnell said in a statement.
"Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement,” Ted Cruz tweeted from his Senate account Saturday afternoon. Marco Rubio likewise said in a statement that the "next president must nominate a justice who will continue Justice Scalia's unwavering belief in the founding principles that we hold dear."
The spokesman for Sen. Mike Lee, who serves on the Judiciary Committee, tweeted, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia? If anything this will put a full stop to all Obama judicial nominees going forward.”
There was never any real chance Republicans would confirm an Obama nominee at this point, especially with control of both the Senate and the White House in play in this year's election. Of course, this will not prevent Obama from making that as painful a process as possible for vulnerable Senate Republican up for re-election — and as big an issue for Republican contenders.
“I don’t think anyone Obama would be thinking about nominating can get through this Senate. No one,” said Josh Holmes, a former chief of staff to Senate Majority Leader Mitch McConnell. Holmes argued even if Obama moved towards the middle — something “he hasn’t shown any proclivity to do” — it would be unlikely, given how conservative Scalia was.
It’s not entirely uncommon for the Senate to block the nominee for a vacancy. But the loss of Scalia is unique: He is, as one Republican put it, “a rock solid conservative seat,” and given the divisions on the court conservatives will be adamant that one of their own replace him.
If Republicans reject Obama’s second nominee, there will be significant pressure on them to at least be open to a compromise candidate, and Democrats — who are holding out hope they can retake the Senate in November — could use a total blockade to accuse Republicans of gridlock.
Already on Saturday evening, Sen. Patrick Leahy, the ranking Democratic member of the Judiciary Committee, put out a statement expressing sadness at Scalia's death, and extolling the virtues of a quick confirmation. "I hope that no one will use this sad news to suggest that the president or the Senate should not perform its constitutional duty," he said. "The American people deserve to have a fully functioning Supreme Court. The Supreme Court of the United States is too important to our democracy for it to be understaffed for partisan reasons. It is only February. The president and the Senate should get to work without delay to nominate, consider and confirm the next justice to serve on the Supreme Court.”
What effect that would have is unclear. Given the stark divisions between the parties, both sides have increasingly become comfortable with standing pat on their demands, regardless of political pressure. And the sheer gravity of replacing Scalia could rise above any political considerations. “Supreme Court nominations are one of the very few things where political risk is outweighed by the fundamental change to the legal system of this country,” the Republican said.
And the fallout from political fight over Scalia’s replacement won’t be contained to the confirmation itself. Routine legislation could fall victim to protracted floor fights, and the use of punitive procedural measures by Democrats to protest GOP opposition could bring Congress to a standstill.
“Welcome to the summer of filibusters,” a former Senate Republican leadership aide said Saturday.