The Big Debate: Who will replace Justice Scalia?

There is considerable controversy surrounding the Justice Scalia’s empty seat on the Supreme Court bench. This is a big responsibility for any president, but with the timing of it being an election year coupled with a Republican majority Senate could make appointing a new Supreme Court Justice very difficult.

Should someone be nominated to the Supreme Court before or after President Obama’s term?

The Constitution is clear on who can nominate a person to the Supreme Court when there is a vacancy. The President is the one who appoints a successor and then the Senate’s approval by majority vote is needed for confirmation to the Supreme Court. The late Justice Scalia was confirmed by a unanimous vote of 98-0 by the Senate when he was appointed by President Ronald Reagan. President Obama intends to fulfill his duty, in a press conference at the White House he stated, “I plan to fulfill my Constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.”
The process of appointing a Supreme Court Justice can go two ways. First, the President may nominate any candidate he wishes. The nominee goes through a judicial committee made up by the Senate. The Senate can approve the nominee by majority vote or may reject the candidate. Neither the President nor the Senate is required to give any reason for their decisions. The second way to appoint a new Justice to the bench is if the President appoints someone through a recess appointment. This type of appointment occurs when the Senate is adjourned. If a President uses this method he would not need Senate’s approval vote but the person appointed to the Supreme Court would have a short term appointment.

How will President Obama get a successful nomination approved?

Obama will have better results if he appoints someone with moderate views and someone whose voting record is a balance between the two parties ‘views. This would require compromise between both sides, and would restore the majority vote for the Supreme Court.

Who are the top contenders?

While many are speculating who will be nominated, a few names keep popping up. Most candidates are judges from the Appeals Courts, such as: Merrick Garland, the chief judge of the D.C. Circuit court; Patricia Millett, D.C. Circuit court judge; Sri Srinivasan, also a D.C. Circuit judge; Richard Posner, a judge in the Seventh Circuit; Jacqueline Nguyen, a judge in the Ninth Circuit Court of Appeals; and Paul Watford, also a Ninth Circuit court judge. A few other candidates include, Kamala Harris, the current Attorney General of California; Senator Cory Booker of New Jersey, and Senator Amy Klobuchar of Minnesota.

Has a Supreme Court vacancy occurred in an election before?

According to SCOTUS blog, the record does not show any instances since 1900 of the current president failing to nominate and the Senate failing to confirm a nominee in a presidential election year. In the past 100 years, the nomination of a Justice in an election year has happened 5 times, the last time in 1988. In those, instances a seat on the Supreme Court was not left open until after the election.