Antonin Scalia, a legendary Conservative Supreme Court Justice, died Saturday afternoon at a Texas resort in Texas at the age of 79. The cause was a massive heart attack. It has set in motion perhaps the most polarizing issue in Supreme Court history, not to mention President Barrack Obama’s tenure in office. In this election 2016, the liberal commander-in-chief, in his lame duck year, has the constitutional authority to nominate his pick for the high court.
In essence, Obama has the “opportunity” to change the direction of the U.S. Supreme Court; or does he? Within hours of the news of Justice Scalia’s passing, conservative court-watchers were looking to invoke the “LBJ precedent” of 1968. What does that mean?
Back in June, 1968, then Chief Justice Earl Warren submitted his resignation to Democrat President Lyndon Johnson, in his last year as president. He had announced in March that he would not seek a second term. Shortly thereafter, Johnson nominated Associate Justice Abe Fortas to succeed him and Federal Judge Homer Thornberry to succeed Fortas. That was his right under the Constitution.
At that time, the late columnists Roland Evans and Robert Novak wrote, “At age 58, Fortas, one of Johnson’s oldest and closest advisers, could be counted on to give the court democratic leadership far into the future, even if Republicans regained the presidency in 1968, as seemed likely.” Of course the operative word in that sentence was “likely” for the soon-to-be rigid Republican opposition.
The political uproar in the halls of the senate included a combination of Republican and conservative Democratic senators who cried foul. Johnson had barely seven months to go in his term which would officially end January 20, 1969. History has given us all the opportunity to see that Republican Richard Milhous Nixon became the 37th President of the United States. The opposition successfully argued that it was unfair for the lame duck President to make such a crucial lifetime appointment.
As it turned out, the Republicans and conservative Democrats, led by the late Sen. Robert Griffin (R.-Mich.), conducted a Senate filibuster that lasted for months. The result was a frustrated Fortas finally withdrew his own nomination. Eventually, in 1969, new president Nixon nominated Warren Burger to be the new chief justice and was confirmed.
Not unlike the scenario that faces the country now, Fortas’ succession to Warren would have maintained liberal domination of the court in 1968. That would most likely be the situation with whomever President Obama nominates. Thus, Justice Scalia’s death means the stakes are even higher today than in 1968; much higher.
A successful confirmation of an Obama hand-picked nominee, heir to the conservative Scalia, would literally change the court with one confirmation from right to left, period. What thinking Americans should understand is this: If say Republican Marco Rubio was in his lame duck year as president, the Democrats had the Senate majority and Harry Reid was the majority leader, what could the nation expect would be the Democrat’s course of action? Since Obama’s presidency began January 20, 2009, the high court has been virtually a 4-to-4 split on major cases brought before them. That would be strict constructionist justices and those jurists who embrace a more liberal interpretation of the Constitution.
So who is the deciding vote on a 4-4 tie? That would be none other than Reagan appointee Anthony Kennedy of California. He has been, in many cases, the court’s “swing vote” on key arguments before the court.
If, for some highly unlikely turn of events, the Senate were to confirm a liberal Obama nominee to succeed the strict constructionist Scalia, there is little doubt Kennedy would swing his vote to the liberal side of the court much like Obama’s two other nominees, Elena Kagan and Sonia Sotomayor.
The Republicans, and possibly moderate Democrats, are extremely unlikely to hand over the court on future cases such as the President’s controversial executive order on immigration (U.S. v. Texas) and the use of union dues for political purposes (Friedrichs v. CTA). It is almost a certainty the Republicans will invoke the “LBJ precedent” in the Senate this year.
If the circumstances were the opposite at this point, isn’t it safe to say the Democrats would be in a similar mind-set? It’s a certainty former Majority Leader Harry Reid would think so.