A Supreme Court fight for the ages

The approaching battle over the Supreme Court vacancy created by the death of Justice Antonin Scalia is likely to be one for the ages, considering the huge political stakes as well as the depth of bitter partisanship in which it will unfold.

Up for grabs will be the ideological balance of the court now left divided 4-4 between conservatives and liberals after the departure of Scalia, who embodied right-wing thinking at its most acerbic.


Among the most contentious political clashes between the political camps on the Supreme Court was the 5-4 decision in the Citizens United decision, which threw open the door to virtually unlimited campaign contributions by wealthy individual and corporate donors. Based on the conceit that spending money is a legitimate form of free speech, the ruling arguably has put elections in the hands of the rich, at the expense of lower and middle-class Americans.

In the 2016 presidential campaign, the principal recipients of this free-flowing largesse have been the Republicans, though their frontrunner, Donald Trump, has made much of the fact that he is financing his campaign from his own deep pockets as a highly successful real estate operator.


On the Democratic side, former Obama Secretary of State Hillary Clinton has tapped into the coffers of prominent Wall Street firms, even as she campaigns as a reformer of the practices unleashed by the Citizens United decision.

Her opponent for the Democratic nomination, Vermont Sen. Bernie Sanders, limiting his own campaign financing to small contributions, has made the issue a centerpiece of his own campaign. He figures to benefit at the polls from the national spotlight on it, while remaining an underdog at this stage of the race.

But political money is only one of the many critical issues that have separated the Supreme Court, whose majority would probably switch to the liberal side with the next Obama judicial nomination.

Such litmus tests as abortion rights and same-sex marriage will add more fuel to the incendiary debate over the confirmation or rejection of Mr. Obama's eventual nominee.

Senate Majority Leader Mitch McConnell's original insistence that he would not bring Mr. Obama's choice to the Senate for a hearing during the 11 months remaining in his presidency has already caused some concern among Senate Republicans, who sense possible voter pushback in the 2016 election.

But given that GOP presidential aspirants Sens. Ted Cruz and Marco Rubio urge obstruction, the Supreme Court vacancy is sure to be a critical voting matter in the November election. President Obama obviously occupies the high ground in insisting that the Republicans meet their responsibility to hold the Senate hearings while he remains in the Oval Office.

The last time a Republican president submitted a Supreme Court candidate to a Democratic-controlled Senate — George H.W. Bush's nomination of Clarence Thomas in 1991 — stormy and ugly hearings ensued. Mr. Thomas alleged he was being subjected to "a high-tech lynching for uppity blacks," but he was eventually confirmed by a 52-48 vote, though with the most votes ever cast against a successful nominee.

The Republicans contend now that it has been nearly 80 years since a Supreme Court justice was nominated in the final year of a president's occupancy, as if this were an immutable precedent.


In 1968, when Lyndon Johnson in his last year sought to promote Abe Fortas to chief justice, he was rejected. Subsequently, GOP Sen. Strom Thurmond argued for a so-called Thurmond Rule that said lifetime appointments should not made in the last six months of a presidential term. But it never was embraced.

Nevertheless, the Senate Republicans will keep looking for a way to get out of a corner in which fate has deposited them. Mr. Obama has been given an early going-away present, with which he can relieve a longtime political headache plaguing American progressives.

He can be expected to put forward a nominee so conspicuously qualified that his or her rejection would cause the Republican Senate a comparable headache contemplating turning that choice down.

Jules Witcover is a syndicated columnist and former long-time writer for The Baltimore Sun. His latest book is "The American Vice Presidency: From Irrelevance to Power" (Smithsonian Books). His email is