Scalia's political legacy

In the end, Justice Antonin Scalia's greatest influence may yet turn out to be in the political rather than in the judicial realm.

For all his record and reputation as the leading conservative and "originalist" advocate of a generation on the Supreme Court, the manner in which his death has intruded on the 2016 presidential election may well be best remembered.


Already Scalia's passing has inspired all the Republican candidates to throw down the gauntlet to the lame-duck President Obama, demanding that he withhold the nomination of a successor and leave the choice to the next president.

Mr. Obama quickly disabused them of that notion, whereupon some of them have vowed to deny his eventual nominee a Senate committee hearing while he is still in office. Sen. Ted Cruz of Texas said he would filibuster such a nomination and that the Senate was "not remotely" required to take it up.


Such a filibuster would hand Mr. Cruz, in the midst of his fight with current Republican frontrunner Donald Trump over leadership the anti-establishment row within the GOP, a dominant forum to showcase his claim to be the purest conservative in the field.

At the same time, the two contending Democrats, Hillary Clinton and Vermont Sen. Bernie Sanders, can rail against further evidence of the Republican obstructionism that has marked the party's stonewalling of the Obama presidency from its start.

With the GOP holding a 54-46 majority in the Senate, it would take all the Democrats and 14 Republicans to muster the 60 votes required to invoke cloture against a filibuster. That would seem impossible in light of the political stakes involved, as would any Democratic effort to change the 60-vote requirement.

Instead, one option for the Obama White House might be to nominate an individual whose rejection by the Republicans could be politically damaging to them in the context of the presidential election. That is, for example, a highly qualified African-American from a federal appellate court, such as Judge Paul Watford of the 9th Circuit Court, whose choice might encourage black voter support for the Democratic presidential nominee in the fall even if his choice was not seated.

That such considerations should be weighed involving that critical decision, both by the president and members of the Senate, is of course a lamentable recourse. With so many critical issues to be adjudicated by the Court involving the well-being of the nation and its citizens, political games-playing should be out of order, but clearly they will not be.

It is ironic that in this argument over Scalia's successor, the famously originalist interpreter of the Constitution as written by the founders, the Republican presidential aspirants would seek to depart from the long-sanctioned practice of the U.S. Senate taking up in a timely fashion a presidential nomination of a Supreme Court justice.

The contention that the sitting president is in his final year in the Oval Office should as a lame duck yield his Constitutional right to nominate a successor to a Supreme Court vacancy is without any legal validity whatever.

Article II, Section 2 specifically gives the president "Power, by and with the advice and consent of the Senate" to appoint "judges of the Supreme Court." It also stipulates that he "shall have the power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."


But the Republican-controlled Senate could be counted on in this instance not to recess, and would assure that the selection of Scalia's replacement would remain a dominant issue in an already extremely contentious and bitter presidential election.

The acerbic but witty Scalia probably would have been enormously amused by the way his parting from the bench, and from the universe, has complicated the campaign for the leadership of a nation in which he had such a significant voice for 30 years. And under the circumstances, the controversial spirit of Justice Scalia will continue to be around in absentia for months to come.

Jules Witcover's latest book is "The American Vice Presidency: From Irrelevance to Power," published by Smithsonian Books. His email is