HERE’S WHAT I KNOW-With the death of Supreme Court Justice Antonin Scalia last Saturday, two Californians were speculated to be on the short list of President Obama’s potential nominees: State Attorney General Kamala Harris and Jacqueline Nyguen, an Obama-appointed United States Circuit Judge for the United States Court of Appeals of the Ninth Circuit.
At a San Jose campaign event Tuesday, however, Ms. Harris told reporters that she had no intention of putting in her name up for consideration and will remain focused on her responsibilities as Attorney General, as well as her Senate campaign to succeed Sen. Barbara Boxer.
Ngyuen was appointed by Gov. Gray Davis to the Superior Court of Los Angeles County, where she stayed until her May 2012 confirmation to the U.S. Court of Appeals of the Ninth Circuit. Prior to serving on the Superior Court, she was Assistant District Attorney in the Central District of California. Ms. Ngyuen is a graduate of Occidental College and UCLA School of Law.
The sudden SCOTUS vacancy has added another battle to what is already a contentious election year. President Obama’s plan to nominate a successor “in due time” has met resistance from Republicans who are counting on winning the White House and keeping control of the House and Senate.
“The American people should have a vote in the selection of their next Supreme Court Justice,” commented Senate Majority Leader Mitch McConnell. “Therefore, this vacancy should not be filled until we have a new President.”
The GOP presidential candidates back up McConnell’s estimation. On Sunday’s Meet the Press, Marco Rubio said, “There comes a point in the last year of the president, especially in their second term, where you stop nominating” both the Supreme Court justices and Court of Appeals judges.
Rubio overstated on both counts. A SCOTUS vacancy during the last year of a presidency is rare. In fact, since 1900, it’s only happened once to a lame duck president and twice to presidents who lost re-election bids and on all three occasions, the president made nominations. Presidents Wilson, FDR, and Eisenhower all made Supreme Court nominations at the end of their terms, just prior to re-election. Late-term lower court appointments are pretty common, though. George W. Bush forwarded nominees to the Court of Appeals during his last months in office.
Senate Minority Leader Harry Reid isn’t too pleased with the Republicans’ vow to raise the gloves. “The President can and should send the Senate a nominee right away. With so many important issues pending before the Supreme Court, the Senate has a responsibility to fill vacancies as soon as possible. It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”
Should the Republicans stall the appointment, the Supreme Court will be effectively impotent. Cases will end up “undecided” with a 4 to 4 vote, or they will be delayed until there is an appointment, or, they will result in liberal rulings. The past several decades have seen a rise in decidedly conservative rulings on issues like voting rights (Shelby County v. Holder), campaign finance reform (Citizens United v. FEC; McCutcheon v. FEC), and environmental regulation (Michigan v. EPA.)
Should the White House go to the Democrats, the previously mentioned cases will probably be reversed and a host of controversial issues like the death penalty, abortion, the power of unions, affirmative action and issues of equality will go before the Court, ending in more liberal rulings.
The timing of the vacancy left by Scalia’s death raises the stakes for the 2016 presidential and senate elections. Will the country continue on the trajectory launched by the Tea Party Takeover of the House and Senate? Will SCOTUS continue issuing conservative-leaning rulings?
The Senate has a constitutional obligation not to create a roadblock for matters that are scheduled to be brought before the Supreme Court. By vowing to block any Obama nominee, the Republicans are playing dirty ball, a move that may backfire with the voters.
(Beth Cone Kramer is a Los Angeles-based writer and writes for CityWatch.) Edited for CityWatch by Linda Abrams.