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The Scalia Problem

justice_scalia_ap_imgOn Saturday, Supreme Court Justice Antonin Scalia died in West Texas at age 79. Praised by Constitutional originalists and conservatives, yet respected by all, Scalia was a fixture on the Supreme Court for thirty years. Scalia’s appointment by President Reagan in 1986 signaled an end to the activist era of the preceding generation. In the thirty years that Scalia served on the Court, he played a pivotal role in crucial 5-4 cases such as Bush v. Gore and District of Columbia v. Heller. Despite Scalia’s prolific history on the Court, the national conversation surrounding his death is focused on the future, not the past.

From the moment Justice Scalia’s death was confirmed, political leaders have positioned themselves along partisan lines with respect to how a new justice should be nominated. Republicans, including Senate Majority Leader Mitch McConnell and the many presidential candidates, are calling for the nomination process to wait until a new president is elected. Democrats, President Obama included, contend that it is the President’s Constitutional duty to nominate a new Justice regardless of time left in the term.

Supreme_Court_US_2010The change in the nomination process of Supreme Court justices has been an exception to the gradual increase in presidential power over the past two generations. In the past, presidents were given wide discretion to nominate their preferred justice. Under President Reagan, Senate Republicans and Democrats alike confirmed Scalia’s nomination in a unanimous 98-0 vote. This would be unimaginable in today’s polarized political climate. Majority Leader McConnell has vowed to block any nomination by President Obama, exemplifying the Congressional gridlock of the present day. Despite this threat, Obama has made it clear that he will submit his nomination to the Senate soon. Only then will we see if the Senate Republicans’ actions match their rhetoric. In the meantime, one more branch of government is evenly split along ideological lines.

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