With the death of Justice Scalia, what happens next?

Article III of the United States Constitution establishes a supreme court. The text of Section One and the first paragraph of Section Two of Article Three reads as follows:

Article III.

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Note that in the establishment of the Supreme Court there is no establishment as to the number of Justices. The Supreme Court began with a Chief Justice and five associate justices. The number of justices fluctuated until 1869 when it became standard to have nine justices.

Article Two, paragraph two allows the President to nominate Supreme Court justices;

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The words, “advice and consent of the Senate” have become the rallying cry of the Republicans as to why President Obama should not nominate a justice to replace Justice Scalia citing that this is a lame duck presidency in an election year. Should a liberal justice be confirmed the balance of the Court would be shifted and juxtaposed to the will of the people should a Republican President be elected.

President Obama and the Democrats rightfully support the President’s directive to nominate a new justice. The Republican majority in the Senate could block any Obama nominee but certainly not without a future fight should the Democrats be later positioned to block a significant Republican issue.

If President Obama does not nominate a justice (this is not a position he will take) during the remainder of his term or the Senate refuses to confirm his nominee, what might happen?

(1) A Constitutional issue could arise without a decision being made due to deadlock of conservative versus liberal justices since eight justices now sit on the Court.

(2) The next President of whichever party would nominate a justice but can run into Senate confirmation issues.

However, an interesting observation is that there is a seventeen day window between the time that new Senators take office and a new President takes office. If the Democrats win a Senate majority and regardless of which party wins the Presidency, President Obama’s nominee could be confirmed with a 2/3 Senate vote within that seventeen day window.

Another interesting thought that has been around is that President Obama might nominate U.S. District Court Judge Ketanji Brown Jackson. While Judge Jackson is not an appellate judge she could be just the justice that Obama might be able to push through. She is a Harvard law school graduate and clerked on the U.S. Supreme Court. Her husband is the twin brother of House Speaker Paul Ryan’s brother-in-law. When Judge Jackson was confirmed in 2012, Congressman Ryan praised her many attributes and she was confirmed without any opposition. Certainly, Republican opposition to Judge Jackson would be awkward after such support.

Judge Jackson is not the only name being speculated on at this time and also includes Attorney General Loretta Lynch in addition to many others.

The United States has at times functioned with an even number of Justices on the Supreme Court. While Congress is for the most part very divided between Republicans and Democrats, the Supreme Court is not as blatantly open on the opposition of its members to one another based on their leanings and one would hope that a reasonable Court would work hard to decide the most difficult decisions following the death of Justice Scalia who not only was the most senior Associate Justice but a most respected jurist by those that knew him.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

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