Death of a Judge AKA :: “Interpretive… Jiggery- Pokery”


h 2016, you little devil you – you just can’t be satisfied, can you? An already contentious election year, you came in roaring with a wave of celebrity deaths, to knock the spangles off all those Happy New Year banners; now, with the unexpected death of Supreme Court Justice Antonin Scalia, you’re showing us just what sort of year you really plan on being – a no-holds barred, on the edge of our seats, whiteknuckling rollercoaster from hell.

And it’s barely mid-February.

The news of Scalia’s death came hours before the latest Republican debate, and within hours of its breaking, even sharper debate has sprung up, over what’s to come next. Already, word is trickling down that the Senate plans to deny any nominee from the Obama administration, and that the choice of replacement should be left up to the next president.

I know, you’re terribly surprised – of course, they would.

However, as you may have guessed, this is hardly a viable notion, given the rather unusually large caseload of controversial issues before the Court: Abortion, immigration, the Affordable Care Act and its mandates, and others. The loss of Scalia leaves the Supreme Court with eight justices, and a potential future of even split decisions on critical issues.

Did I mention that this is not a viable notion? Let me explain some:

In the distinct possibility of not having a ninth justice, the Supreme Court will be faced with the following options on decision – either announce the occasion of a 4/4 split, which would affirm a lower court decision in absence of decided opinion by the SCOTUS, or set aside evenly split decisions for re-argument at a later time. Neither option is especially desirable, as a lower court decision could be unfair or potentially unconstitutional, and tabling for re-argument merely delays the judicial process, and in some cases, merely extends the suffering of the parties involved. In other words, it’s very much a lose/lose proposition.

Prior to this administration, the longest time passed before a replacement was appointed was 107 days. Currently, there are over 300 days remaining in the Obama presidency, and the Senate, as mentioned, has made noises about denying any and all candidates put forth. If said threat is carried out, this leaves us with a largely crippled Supreme Court, and a weakened nation overall.

As mentioned, the Senate seems to prefer the idea that the next President be the one to fill Scalia’s vacancy, with the further presumption that the GOP will be taking the White House.


Even if this (this = decision being left to the next President) did come to pass, *and* the new President’s first decision was a nominee (hint: It wouldn’t be, but indulge me.) for the SCOTUS, it’s unlikely the decision would pass until the *end* of the term, effectively leaving the Court not fully functional, not only for the end of this Court’s term, but the next one – well over a year.

(Did I say that this is not a viable notion?)

So, what is Obama to do? For the sake of the country, and the greater good, he needs to find a nominee – but there’s the crux of the issue. Presumably, he’d want someone capable of shifting the balance, which as noted, is something that Congress does NOT want. A more conservative choice on his part just to appease the Senate would likely fail as well, as it would backfire against Obama. For that matter, it’s unlikely that *anyone* deemed acceptable by Obama could pass current Senate muster. And thus, the horns of the dilemma grow longer and sharper…

(It’s here that I will interject my own thoughts on potential nominee: Sandra Day O’Connor. She has the credentials, having been a Supreme Court justice before, and as a Reagan appointee, it would be interesting to see this current Senate, who idolizes Reagan, find reason to deny…)

There are 340 days left in Obama’s final term. Will this decision be reached before the end of his term? Given that it’s been less than forty-eight hours since the announcement of Scalia’s death, and already there’s talk of Congressional push-back, this question becomes even harder to predict. This is not going to be an easily decided, nor quickly decided issue; as one voter to another, please remember this, at election time.

Nathan Klayman