As the mourning of Supreme Court Justice Antonin Scalia's death Saturday quickly gave way to heated debate over his replacement, Democrat and Republican leaders are locked in a partisan quagmire: Despite Senate Majority Leader Mitch McConnell’s warning against any new nomination, President Barack Obama announced Sunday that he will in fact, nominate a successor.
The matter is now split clean across party lines, with Republican lawmakers and candidates standing behind Mr. McConnell while their Democratic counterparts chide them for obstructionism.
Hillary Clinton, for instance, posted an 11-tweet rant late Monday night.
“The need to fill the Supreme Court vacancy is not an occasion for politics as usual. This has real and urgent stakes for Americans now,” she wrote. “I have news for Republicans who would put politics over the Constitution: Refusing to do your duty isn’t righteous, it's disgraceful.”
Her call to action is echoed by Senate Minority Leader Harry Reid.
But given the highly polarized nature of Washington politics, it's to be expected that either party would oppose a Supreme Court appointment by a president of the opposite party.
In fact, the exact same scenario as what is happening now could have been flipped nearly a decade ago, in the last year of George W. Bush’s presidency.
As Politico reported in 2007, Sen. Chuck Schumer, a moderate Democrat from New York, said then that his party should block any additional Supreme Court appointments by President Bush “except in extraordinary circumstances.”
“We should reverse the presumption of confirmation,” the senator told the American Constitution Society convention in July of 2007. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”
Under Mr. Bush, two appointments were confirmed: Justices John Roberts and Samuel A. Alito. The latter, as Senator Schumer and his fellow Democrats argued, tipped the ideological balance of the bench toward the right. Schumer would go on to say that his reservation in advocating against Justice Alito was his “greatest regret” in that session of Congress.
Traditionally, political ideology played a minimal role in the high court’s nominations. As reported by The New York Times in 2014, presidents instead prioritized religious or ethnic affiliations, the opportunity for political favors, and legal ability.
“Even when ideology was their main concern, they often bet wrong,” The Times’ Adam Liptak wrote. “That is why Republican presidents routinely appointed justices who were or would turn out to be liberals. Among them were Chief Justice Earl Warren and Justices William J. Brennan Jr. and Harry A. Blackmun.”
But today, political leanings are much more pivotal in the selection of the next justice. With a conservative-leaning bench, a good chunk of Supreme Court decisions are divided 5-4 along party lines. In other words, Republican appointees tend to vote with the conservative bloc and vice versa for Democratic appointees, with the exception of Justice Roberts and Justice Anthony Kennedy as intermittent but critical swing votes.
As Andrew Prokop at Vox wrote from the perspective of McConnell, the Republican reluctance to accept nominations is reasonable under the current political climate. He goes on:
Yes, yes, in suggesting that President Obama shouldn't appoint any replacement for Scalia, and that he should just leave it to the next president, I am rhetorically going further than others have in the past.
But really I've just hit the fast-forward button. We would have ended up opposing whomever Obama nominated, because that person would, of course, have had liberal views.
And while it’s historically rare for Supreme Court appointments to successfully make it to the bench during election years, it has happened. The most recent example was Justice Kennedy’s confirmation in 1988 – just months before the presidential election. Nominated by President Ronald Reagan, he was approved unanimously by Congress – and a Democrat-controlled one no less.