More than any single event of his presidency, the death of Supreme Court Associate Justice Antonin Gregory Scalia presents Barack Obama with the most concrete opportunity to actualize his presidential campaign promise: “Change We Can Believe In.” Mortality has intervened and forced America into a direct collision with the most visceral and authoritative factor in a “post-Civil Rights era.”
President Obama’s announcement that he will nominate a successor for Scalia “in due time” gives him potentially three appointees to the court, placing him on par with Ronald Reagan and shadows efforts once made to shape the U.S. Supreme Court as a conservative political failsafe made by every Republican president over the last five decades. Obama’s two previous appointees have been justices with direct or intellectual ties to Thurgood Marshall.
Elena Kagan clerked for and revered Marshall personally, although her judicial opinions do not exhibit her hero’s blend of reliance on precedent, socially transformative judicial interpretation and personal experience. In contrast, Sonia Sotomayor’s judicial opinions, public statements, and activities seem to more closely extend the legendary Civil Rights icon’s judicial predilections, political acumen and persona.
Speculation on potential nominees is quickly focusing on “confirmable” candidates such as the Indian-American D.C. Circuit Judge, Sri Srinivasan, Merrick Garland or Patricia Ann Millett. Each of these candidates was confirmed by bi-partisan votes in the U.S. Senate. Attorney General Loretta Lynch, current California Attorney General Kamala Harris and Judge Paul Watford of the Ninth Circuit Court of Appeals have emerged as early African-American short-listers, each of whom would have an arguably winning case to be made for appointment in a world not colored by the racially-tinged Obama hatred that currently courses through the veins of the GOP and its most visible leaders.
If any Presidential nomination is made in the next month and is not given a hearing, yet another anti-Obama obstructionist precedent masquerading as “Washington business as usual” will be established. Currently, the nominee to wait the longest for a confirmation vote was Louis Brandeis in 1916. Brandeis was eventually confirmed after 19 public hearings and 125 days.
Obama’s nominee, if confirmed, may ensure that the next wave of jurisprudence coming from the court will directly confront the legacy of the “Reagan Revolution.” Reagan appointees chipped at America’s post-World War II social revolutions. Appointee Sandra Day O’Connor extended Justice Lewis Powell’s 1978 definition of Affirmative Action as an interest in Whiteness-enhancing “diversity” rather than state-sanctioned remedy for structural and historical discrimination. Nixon appointee and loyalist William Rehnquist was elevated to Chief Justice by Reagan, where he consistently championed “states’ rights,” questioned any right to “privacy” and found jurisprudential conceptual logic for his often racist and sexist personal perspective, with the assistance of law clerks like the current Chief Justice, John Roberts.
Barring any unexpected political shifts or scheduling re-arguments for the next court term (both unlikely), the four-vote “liberal bloc” on the Court will prevent vital decisions in the current term from overturning some key appellate court rulings. At worst, it seems, the Ninth Circuit Court of Appeals ruling allowing the California teachers union to collect fees from all teachers to cover collective bargaining costs in Friedrichs v. California Teachers Association is more likely to stand. Plaintiffs in the voting rights case, Evenwel v. Abbott, seek to redefine “one person-one vote” to a standard that requires that states only count “eligible voters” rather than all people when determining legislative districts. A three judge district court panel rejected this argument, and that ruling will likely be upheld now.
On the other political side of the equation, two rulings by the conservative Fifth Circuit Court of Appeals are also likely to be upheld. The first, ruling that President Obama exceeded his authority in ordering the Department of Homeland Security to defer deportation of over 5 million immigrants in United States v. Texas is likely to stand, as is Texas’s draconian abortion law, upheld by the Fifth Circuit in Women’s Whole Health v. Hellerstedt.
The affirmative action case before the court, Fisher v. University of Texas, will rely once again on the vote of Justice Anthony Kennedy to prevent the reversal of the Fifth Circuit’s re-endorsement of how the university currently uses race as one factor in college admissions. Although Kennedy has never completely ruled out the use of race as a factor, a 4-3 ruling (Kagan has recused herself because she appealed the case while U.S. Solicitor General) against the plan is likely. Scalia’s now-famous comments during last fall’s oral arguments in Fisher, that perhaps Blacks belong in “less-advanced, slower-track schools” will thankfully be only his personal, and not potentially his legal, valedictory on the subject. Casual Court observers will, however, be able to see that Clarence Thomas, long unfairly derided as Scalia’s intellectual puppet, is in fact, a more iconoclastic jurist than he is given credit for.
Much in coming months will depend on the political climate. Five so-called “Blue State Republicans” in the U.S. Senate have already begun signaling their willingness to line up behind Majority Leader Mitch McConnell who declared that no Obama nominee will receive a hearing in the U.S. Senate.
Opening gambits aside, GOP senators Kelly Ayotte (New Hampshire), Ron Johnson (Wisconsin), Mark Kirk (Illinois), Rob Portman (Ohio) and Pat Toomey (Pennsylvania) will nevertheless have to choose between the possibility of losing re-election and punishment in an increasingly marginalized national legislature. Whether pressure can be brought to bear on them or others will be determined by the fortitude and efforts of so-called “leaders” of Civil Rights organizations and their allies. Voters matter, perhaps now more than ever.
Both GOP and Democratic Presidential candidates have leaped into the debate. Ted Cruz, if anything, more ideologically rigid than Scalia, has expectedly declared that he would filibuster any Obama nominee. Marco Rubio, a frenetic ball of ambition, offered a nonsensical statement that “it has been over 80 years since a lame duck president appointed a Supreme Court justice,” ignoring that presidential term limits have only existed since 1947’s 22nd Amendment.
Both Bernie Sanders and Hillary Clinton have, of course, endorsed an Obama nomination but surely harbor dreams of making a selection of their own should they win the election. Either way, history means little in contemporary American society, and even less in the current political ring. There is no historical precedent for not giving an Obama nominee a judicial hearing particularly in the example of Franklin Roosevelt’s end-of- second term nomination of Frank Murphy (confirmed) Lyndon Johnson’s nomination of Abe Fortas for Chief Justice (withdrawn) or Ronald Reagan’s nomination of Anthony Kennedy (confirmed).
At best, Barack Obama will find in this watershed moment a successful strategy for elevating his relevance past two historic presidential elections, a flawed but significant expansion of health care, a series of executive orders that have tested the parameters of presidential power, and a badly-misunderstood representation of his cultural and political significance as a race “leader.”
Fate has presented him an opportunity to fortify gains with the generation that made his election possible. Antonin Scalia’s legacy will live far beyond his death. Tensions attendant to forming “a more perfect union” will as well. So does our responsibility to grapple with them, as Scalia did, to the best of our abilities. The fate of the American experiment remains, as always, in our hands.
Greg E. Carr, Ph.D., JD is the Associate Professor of Africana Studies and the Chair, Department of Afro-American Studies at Howard University. Follow him on Twitter: @AfricanaCarr.