'Seismic shift' awaiting Supreme Court

In this Wednesday, April 7, 2004 file photo, U.S. Supreme Court Justice Antonin Scalia speaks to Presbyterian Christian High School students in Hattiesburg, Miss. On Saturday, Feb. 13, 2016, the U.S. Marshals Service confirmed that Scalia has died at the age of 79. (Gavin Averill/The Hattiesburg American via AP)

Longtime United States Supreme Court (USSC) Justice, Antonin Scalia, was found dead on Saturday, Feb. 13 at a luxury ranch in Texas. He died of natural causes.

The legal consequences of Scalia’s death have yet to be discovered, although it is apparent that the Supreme Court will be in for a dramatic change with the loss of their conservative stalwart. An opening on the USSC has a host of political implications as well, which are playing out in real time. Republican lawmakers, including Senate majority leader Mitch McConnell and senator/presidential candidate Ted Cruz, have called for President Barack Obama to hold off on appointing a new justice until after the election. Democrats like Senate minority leader Harry Reid and presidential candidate Hillary Clinton both defended Obama’s constitutional right to do just that.

University of Connecticut professor David Yalof, who is head of the Department of Political Science, is a USSC expert scholar. He tried to make sense of the situation.  

Before addressing the politics at hand, Yalof described Scalia as a “true intellectual on the court” and someone who changed the debate by dictating text and history be a part of constitutional discussions.

“Even when the text sometimes pointed in directions that people didn’t like, he was extremely committed to the text, as understood by the drafters,” Yalof said.

The politics of the matter are multifaceted. Yalof explained that no party wants to see a president in their final year of office sneak a Supreme Court justice in under the wire, so it’s logical that Republicans attempt making a point by telling Obama to not even send them a name. What interested Yalof, though, was the possibility Obama nominated someone who was moderate or consensus enough. Ultimately, Yalof pointed out, the modern iteration of the Republican Party has not felt the consequences of reckless politics in the past.

“Will there be a political fallout? Will it be significant enough that they [Republicans] regret it?” Yalof asked. “Remember, Republicans shut down the government and nothing changed. They proceeded to take control of both of the houses of Congress.”

Still, Yalof added, such a political game “may harm their [Republican] efforts to get the presidency.”

What are the chances of Obama putting forth a candidate who can pass the nomination process?

“I think they’re very low. I don’t think they’re zero, but I think they’re low,” Yalof said. “He’s going to have to nominate a consensus individual, someone who has a terrific story and is well-liked by Republicans and Democrats alike.”

Yalof then pointed to the complications of such a nomination. It would frustrate core liberal constituencies who believe Hillary Clinton or Bernie Sanders could win the nomination and select a true progressive for the Court.

“President Obama is in a difficult situation, he has to thread the needle very carefully here,” Yalof said.

It is clear that Obama intends to nominate somebody, for if he doesn’t, Yalof said, “he will appear cowardly.” There are two directions Obama can go in, according to Yalof. He could nominate that consensus candidate and try and pass them through, or he could nominate someone quite far-left as to anger Republicans and ignite Democrats for the upcoming election.

Who will he nominate?

“There are a lot of minority candidates whose nominations, to some extent, put the Republicans’ feet in the fire,” Yalof said. “Paul Watkins is an African American judge who is 48-years-old. Sri Srinivasan is an Indian-American who was confirmed 97-0 for lower court judgeship.”

If a woman were to be nominated, Republicans may not have a choice but to allow that nomination to go through, as, Yalof mentioned, they are eager to take a more sizable part in the women’s vote.

“My advice to him (Obama) would be to nominate somebody, otherwise he would simply be caving to the republicans,” Yalof said. “They’re not passing anything through anyway. There’s little left to do other than try to make inroads in Middle East peace. Foreign policy is a place where presidents can do a lot without congressional approval.”

Filling a Supreme Court vacancy is notoriously hard to do in an election year. That hasn’t happed since 1932 with Benajmin Cardozo. Anthony Kennedy was approved in 1988, which was an election year, but that spot opened in 1987. Furthermore, this is only the second time a justice has died while in office.

No matter who is president at the time of nomination, though, the USSC will look entirely different.

“The Court is likely to move to the left even if President Cruz appoints a nominee,” Yalof said. “Even a Republican president would be well-advised to find a moderate. If a Democratic president replaces Justice Scalia, there will be a seismic shift to the left in the court.”

At stake are issues of abortion, religious freedom, federalism and state rights, some of Scalia’s favorite topics. Every aspect of the law, Yalof said, is susceptible to alteration.

“Even with a moderate, consensus individual, that compared to Scalia would be a significant shift. The last shift this dramatic was when Thurgood Marshall retired and was replaced by Clarence Thomas, an extreme conservative,” Yalof said. “That’s why the Republican Senate is doing what they’re doing. The stakes are too high, this is not reality television. The next president will likely be the one to replace this vacancy, and the stakes are gigantic.”


Sten Spinella is senior staff writer for The Daily Campus. He can be reached via email at sten.spinella@uconn.edu