Supreme Court Justice Antonin Scalia has died; will the Senate act on his replacement?

U.S. Supreme Court Justice Antonin Scalia died in his sleep overnight while visiting west Texas, multiple local news sources reported this afternoon. Scalia was the longest-serving current member of the court, having been appointed by President Ronald Reagan in 1986.

I am seeking comment from U.S. Senator Chuck Grassley, who chairs the Senate Judiciary Committee, on whether Senate Republicans will consider a Supreme Court nomination by President Barack Obama, or whether they will decline to take up any nomination until after the presidential election. Last year the GOP-controlled Senate confirmed only eleven federal judges, "the fewest in a single year since 1960." Some conservatives including Senator and presidential candidate Ted Cruz and Sean Davis, founder of The Federalist website, are already demanding that the Senate refuse to act on any Supreme Court nominees until a new president has been elected.

I will update this post as needed with Grassley's comments and other Iowa reaction to Scalia's passing.

UPDATE: Have not heard back from Grassley's office, but a spokesperson for Senator Mike Lee of Utah, who also serves on the Judiciary Committee, says Scalia's death "will put a full stop to all Obama judicial nominees going forward" and characterized as "less than zero" the chance of this president getting Scalia's replacement on the bench.

SECOND UPDATE: Speaking by phone to the Des Moines Register's Jason Noble, Grassley praised Scalia's "legacy of scholarship" and said he would be "badly missed" as an interpreter of original intent, adding, "I wouldn't make any prognostication on anything about the future because there's so many balls in the air when those things are considered."

THIRD UPDATE: Senate Majority Leader Mitch McConnell said in a statement, "this vacancy should not be filled until we have a new President." Senate Minority Leader Harry Reid commented on Twitter, "Would be unprecedented in recent history for SCOTUS to go year with vacancy. And shameful abdication of our constitutional responsibility."

FOURTH UPDATE: That was fast. In less than two hours, Grassley changed his tune, saying "it only makes sense that we defer to the American people" and let the next president appoint Scalia's successor. That would mean leaving a Supreme Court seat vacant for more than a year. A statement from Reid's office noted that since 1975, "the average number of days from nomination to final Senate vote is 67 days (2.2 months)."

Grassley also claimed "it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year." But he voted to confirm Justice Anthony Kennedy in early 1988. (President Reagan had nominated Kennedy in late 1987.)

FIFTH UPDATE: Added below statements from Grassley and Senator Joni Ernst and a few links on how this vacancy could affect cases currently pending before the high court. Many names have been floated as possible nominees; one that would be particularly awkward for Republicans is Sri Sinivasan. The Senate unanimously confirmed him to the D.C. Circuit Court of Appeals in 2013. He would be the first Asian-American to serve on the Supreme Court. Other possible candidates include Jane Kelly, "a career public defender from Iowa whose nomination for the federal bunch Grassley championed, leading to a unanimous confirmation in 2013."

SIXTH UPDATE: For more background on Judge Kelly, see Ryan Foley's report for the Associated Press at the time of her confirmation. Bleeding Heartland's post on that unanimous Senate vote included Grassley's floor speech enthusiastically supporting her.

Tom Goldstein argues that 9th Circuit Court Judge Paul Watford is Obama's most likely pick for the high court this year.

Statement released by Senator Chuck Grassley, February 13:

Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, made the following statement after learning of the death of Supreme Court Justice Antonin Scalia.

“Justice Scalia was an intellectual giant. His originalist interpretation of the Constitution set the standard for the court. He had an unwavering dedication to the founding document that has guided our country for nearly 230 years. His humor, devotion to the Constitution and quick wit will be remembered for years to come. Barbara and I send our prayers to Justice Scalia’s family.

“The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year. Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

Statement released by Senator Joni Ernst, February 13:

WASHINGTON, D.C. – U.S. Senator Joni Ernst (R-IA) issued the following statement on the passing of Supreme Court Justice Antonin Scalia‎:

"Justice Antonin Scalia was a ‎passionate defender of our Constitution and one of the most influential legal minds of our time. His nearly thirty years of service on the Supreme Court were marked by a commitment to upholding the principles on which our country was founded. I am deeply saddened by the passing of Justice Scalia and ‎my thoughts and prayers are with his wife, Maureen, and their family."

President Obama will exercise his authority:

“I plan to fulfill my constitutional responsibilities to name a successor in due time," he told reporters. "There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fear hearing and a timely vote." [...]

The president urged Republicans and Democrats to put aside election-year politics and confirm a nominee to ensure nine justices continue to serve on the bench.

"These are responsibilities I take seriously as should everyone. They are bigger than any one party, they are about our democracy," he said.

Representative Steve King (R, IA-04) tweeted that Scalia's "legacy will live as long as American history itself" and shared a House Judiciary Committee post saying Scalia "will forever be remembered as one of the great defenders of the Constitution."

Hillary Clinton released the following statement:

"My thoughts and prayers are with the family and friends of Justice Scalia as they mourn his sudden passing. I did not hold Justice Scalia’s views, but he was a dedicated public servant who brought energy and passion to the bench."

"The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution. The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons."

Bernie Sanders released the following statement:

“While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court. My thoughts and prayers are with his family and his colleagues on the court who mourn his passing.”

Tom Goldstein explained at the SCOTUSblog "What happens to this Term’s close cases?"

If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four. In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case. Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”

The most immediate and important implications involve that union case. A conservative ruling in that case is now unlikely to issue. Other significant cases in which the Court may now be equally divided include Evenwel v. Abbott (on the meaning of the “one person, one vote” guarantee), the cases challenging the accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, and the challenge to the Obama administration’s immigration policy.

Assuming Scalia's seat remains vacant for a long time, the U.S. appeals courts will gain more power, because every deadlocked 4-4 ruling means the lower court's decision stands. One important case that could be affected involves the U.S. Environmental Protection Agency's Clean Power Plan, finalized last summer. Earlier this week, the Supreme Court put a stay on implementing that plan until all legal challenges have been resolved. Brad Plumer explained the implications of five justices' "unprecedented" move to "step in and block a federal regulation like this, before review by an appeals court."

Today Jonathan Chait argued that Scalia's death "Will Change the Supreme Court, America, and the Planet":

Last week, the Supreme Court issued a stay delaying the implementation of Obama’s Clean Power Plan. The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama’s plan, which could jeopardize the Paris climate agreement and leave greenhouse gasses unchecked. Without Scalia on the Court, the odds of this drop to virtually zero. The challenge is set to be decided by a D.C. Circuit panel composed of a majority of Democratic appointees, which will almost certainly uphold the regulations. If the plan is upheld, it would require a majority of the Court to strike it down. With the Court now tied 4-4, such a ruling now seems nearly impossible.

Even if the Senate does not confirm any successor, then, Scalia’s absence alone reshapes the Court. Modern conservative legal doctrine has moved toward a form of aggressive judicial activism, devising — or, more precisely, resurrecting -- theories that allow the Court to strike down vast swaths of laws conservatives find objectionable. Activist Courts require a majority. That is now gone.

Stephanie Mencimer highlighted "Six All-Important Cases Now Pretty Much Decided After Scalia's Death."

Friedrichs v. California Teachers Association: Perhaps the biggest beneficiaries of Scalia's death are public sector unions. This case, which produced one of the more contentious oral arguments of the term, was headed towards a 5-4 decision in favor of Rebecca Friedrichs and the other plaintiffs who were challenging the California's teachers' union's right to charge public school employees fees to cover the costs of the collective bargaining it did on their behalf, even though they aren't members of the union. [...]

US v Texas: Texas and nearly two dozen other states filed suit to block the implementation of President Barack Obama's orders to the Department of Homeland Security to defer the deportation of about 5.5 million immigrants, especially children brought to the US illegally by their parents. [...]

Evenwel v Abbott and Harris v Arizona Independent Redistricting: These cases both involve attacks on the drawing of legislative districts and involve the sorts of political issues that the court has historically avoided, preferring to leave politics and redistricting fights to the politicians. Rulings in favor of the plaintiffs--mostly tea party activists--would likely result in political districts more tilted to favor rural, white Republican voters. [...]

Women's Whole Health v Hellerstedt and Zubik v Burwell: The court is poised to hear several major challenges involving women's reproductive health rights. In Women's Whole Health, the court will decide whether Texas's restrictive abortion law, which has already resulted in the closure of many clinics and, if fully enforced, would close even more clinics and force women in Texas to travel long distances or leave the state in search of a legal abortion, is constitutional. [...]

In Zubik, a host of religious organizations, including the Little Sisters of the Poor, have asked the court to block a requirement by the Obama administration that they sign a form asking for a religious exemption for providing mandatory contraception coverage in their insurance plans for employees that's required by the Affordable Care Act.

Chart from a Congressional Research Service report by Barry J. McMillion, "Supreme Court Appointment Process: Senate Debate and Confirmation Vote."

timeline for SCOTUS confirmations photo CbIctEPWwAAVA3E_zpsfqunaze4.png

The SCOTUSblog's Amy Howe reviewed a century of Supreme Court nominations, concluding, "The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years." Click through for the examples she found. Howe noted, "In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year. But neither reflects a practice of leaving a seat open on the Supreme Court until after the election." In both cases, the justices who were planning to retire stayed on the bench until their successors had been confirmed.

  • Who will hold Grassley accountable?

    Seems like there will never be a better time for the electorate to ask Grassley why he either lied or had a "senior moment" yesterday about why it was OK to approve a Reagan appointee during the 1988 election year, but not this time. Rob Hogg, here is your opportunity to take the lead. I seriously doubt that MSM will. Make some noise! Grassley should be encouraged to start a support group called Hypocrites Anonymous.

  • Maybe Grassley is looking out for Iowa!

    With Iowan Jane Kelly on the list of possible nominees, he is just playing hard to get, thus boosting her chances.

    Any foot dragging would be a sad way to end a long Senate career, merely validating Bruce Braley's warning about putting a non-lawyer in charge of the Judiciary Committee. Grassley should show us he is not too old to do his job.

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