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Following the death of Supreme Court Justice Antonin Scalia, Obama has pledged to appoint a new judge within his presidency. While at first this may seem to be apparent, as it is his job as a president to do so, the Republican-controlled Senate will make it difficult for the President to fulfil his role. Shortly after Scalia’s passing Senate Majority Leader Mitch McConnell released a statement in which he stated that the departing president should not make the choice, and leave it up to the next president. This is an unsurprising conclusion for Mr McConnell, as the loss of Scalia from the court removes a key Conservative Judge, and a Democrat appointment would tip the weight of the bench towards the left for years to come.
The nine-judge strong court is the final arbiter on the US’s most contentious political and legal controversies. Previously the Court was divided between five conservative judges and four liberal ones (though the judges did not always act on political beliefs), with Scalia being the most outspoken advocate for conservative jurisprudence. From his authorship of District of Columbia v Heller, which held that the Second Amendment protected firearm ownership as a constitutional right, to his famously fiery dissents, he has been the legal champion of the Republicans since the Regan Era.After the loss of Scalia the court will continue to function and will consider the cases currently scheduled for its current term. These include deliberations on Obama’s executive action on Immigration and affirmative action among others. However, with only eight judges the court may well be split four to four on many of the more politically divided cases. In this case, the decision of the lower court will continue to stand. To put it simply: the Supreme Court may be powerless on the country’s most important cases till the ninth justice is named.
While Obama has stated that he intends to appoint a replacement within his term, the Republican-controlled senate will make this task very difficult for him. Appointments must be confirmed by the senate, which is currently under a Republican majority. Most appointments take on average 3 months, which would fit in easily in Obama’s remaining 11 months. However, many Republicans have vowed to prevent any appointments from taking place until the next president comes into power. They can do this through slowing down confirmation hearings, and filibustering any nominee before they can reach a vote. The aim in this is that a Republican president would name a conservative judge, enabling them to keep the one vote majority that the court has.
Obama has said he will release his nominee in the forthcoming week, and there is already speculation circulating Washington over the pick. Obama has had two Supreme Court openings during his presidency, and in both he chose young, liberal lawyers to serve. The rumoured favourite for the position is Sri Srinivasan, an Indian American on the District of Columbia Circuit. His youth is important for longevity as Supreme Court justices are for life, and he does not have a controversial track record which would make it easier for him to be attacked by conservatives. Sri is a liberal, but Obama may put forward a more bipartisan judge as a method of appeasing a Republican Senate.
The effect that this will have on the presidential campaign will be massive. Supreme Court justices serve for a lifetime, and so the forthcoming election will decide the political sway of the court for years to come. The death of Scalia amid an already tense presidential campaign opens up a range of issues, as the court deliberates on cases ranging from Gay Marriage to Birth Control regularly. Obama’s chances of getting a confirmed judge before the end of his term are slim, but the Republican Party may fall in public favour if they are seen to be causing a block in the senate.
In addition to this high turnouts often result in a rise in Democrat votes, and with the effect the nomination of the judge will have on social issues a higher turnout is to be expected. However this campaign has shown time and time again that it will defy predictions, with the surge for Donald Trump and Bernie Sanders being perfect illustrations of this, and so everything is to play for.