On February 13, 2016 Justice Antonin Scalia passed away, leaving a 4-4 split in conservative and liberal justices in the U.S Supreme Court. The current deadlock in the U.S Supreme Court means Justice Scalia’s successor could potentially radically alter the complexion of U.S Supreme Court judgments and could cause the U.S Supreme Court to swing towards a more liberal or more conservative standpoint, depending on the political views of the new justice.
Unfortunately since Justice Scalia’s demise, there have been deep divisions within the Senate, along party lines, as to the identify of his successor. As a result, the vacancy remains unfulfilled, over a year later.
Constitutional Requirements for Appointment to the U.S Supreme Court
The Constitutional requirements for appointment to the U.S Supreme Court are surprisingly limited. Under Article II of the U.S Constitution, a prospective Supreme Court Justice merely needs to be nominated by the President and approved by the Senate. Strictly speaking, there is no requirement for a U.S Supreme Court justice to be a U.S citizen or even a qualified lawyer. However, notwithstanding the relatively straightforward Constitutional requirements, the Senate has remained in a constant state of deadlock over the appointment of a new U.S Supreme Court justice, following the demise of Justice Antonin Scalia over a year ago.
President Obama’s Nominee
Within one month of Justice Scalia’s untimely death, on March 16, 2016, President Obama nominated Merrick Garland to succeed Justice Antonin Scalia to the U.S Supreme Court. However, the Republican-controlled Senate refused to consider President Obama’s nominee during the term of his Presidency, preferring to wait until the inauguration of the 45th President of the United States.
Members of the Republican Party were reportedly concerned President Obama’s nominee might have a liberal influence on the outcome of U.S Supreme Court cases, despite Merrick Garland widely being perceived to be a judicial moderate. As a result of the political deadlock, Merrick Garland’s nomination was never considered by the Senate and the U.S Supreme Court remained without a ninth justice throughout the remainder of the 44th Presidency.
President Trump’s Nominee
President Trump formally announced the nomination of his own candidate, Neil Gorsuch, on January 31 2017, nearly twelve months after the demise of Justice Scalia. On April 3, 2017, the Judiciary Committee of the Senate approved the nomination of Neil Gorsuch in an 11-9 vote, down party lines. The approval of President Trump’s nominee by the Judiciary Committee paved the way for the nomination to be formally considered by the Senate.
However, the Democratic Party are deeply concerned by speculation Neil Gorsuch holds conservative views on issues such as abortion and by his judicial record as a Judge of the United States Court of Appeals for the Tenth Circuit. Indeed, Richard Primus of Politico is reported to have described Neil Gorsuch as “Scalia 2.0”, due to their ideological similarities. As a result, the Democratic Party are generally opposed to the appointment of Neil Gorsuch.
The Resurgence of the “Filibuster” and the So-Called “Nuclear Option”
The leader of the Democrat Senate minority, Chuck Schumer of New York has pledged to lead Democrats in a “filibuster” of the nomination. A filibuster is a process whereby a minority of Senators indefinitely extend debate on a U.S Supreme Court nominee, with a view to indefinitely obstructing appointment of the nominee. A supermajority of 60 senators is required to avoid a filibuster. It is clear, based on the number of Democrats who have announced their support for a filibuster, that the Republican Party will not be able to avoid a filibuster.
In the event the Democrats successfully “filibuster” the nomination, the leader of the Republican majority, Mitch McConnell of Kentucky, has pledged to exercise the “nuclear option”, which involves changing Senate rules, to prevent the filibuster of U.S Supreme Court nominees.
Regardless of the outcome of the Senate debates on the approval of Neil Gorsuch, it is clear that a successor to Justice Antonin Scalia will not be appointed any time soon.
Our View
While it is imperative that the President and Senate identify and approve the best candidate for appointment to the U.S Supreme Court, we are conscious that the U.S Supreme Court has been without a ninth justice for over one year and are concerned by the impact the current 4-4 conservative-liberal deadlock is having on U.S justice. Over the past year, numerous judgments on fundamental issues of Constitutional importance have ended in a 4-4 split in U.S Supreme Court justices, effectively resulting in no decision at all. With the possibility of a challenge to President Trump’s Executive Order on immigration on the horizon, we hope that a liberal replacement for Justice Scalia will be appointed as soon as possible, to enable the effective administration of justice.
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Update
Since publication, Neil Gorsuch has been formally confirmed to the U.S Supreme Court by the Senate, following an historic change to Senate rules. Although he was not our preferred candidate, we congratulate him on his appointment to the U.S Supreme Court and look forward to reading his judgments in due course.
