After the passing of Justice Antonin Scalia — I posted my tribute to him here — Washington, D.C., has been almost unseemly in its rush to discuss the political consequences of a new vacancy on the Supreme Court. President Obama declared the night of Scalia’s death: “I plan to fulfill my constitutional responsibilities to nominate a successor in due time.” Senate majority leader Mitch McConnell hinted that the Senate would not confirm the nominee: “The American people should have a voice in the selection of their next Supreme Court justice.” But now that the issue has taken center stage, Republican candidates and senators should understand clearly what is at stake.
The appointment is critical not just because it comes during a presidential-election year. The Supreme Court is finely balanced between conservatives and liberals at a time when it still rushes to confront the most controversial issues of the day. Cases on immigration, affirmative action, religion, abortion, and free speech, among others, sit on the Court’s docket right now, awaiting decision. As the Court is now split 4–4 between conservatives and liberals, this November’s elections will serve as a referendum on these issues and whether the conservative revolution in constitutional law will continue.
Voters should ask themselves: Who should pick Justice Scalia’s replacement? Do they want Bernie Sanders or Hillary Clinton to fill this critical seat on the Court? They would not only end the conservative majority — weak though it is — on the Court, but they would probably send it off into new lands of which liberals can only dream. Do they want Donald Trump, Ted Cruz, or Marco Rubio to nominate Scalia’s successor? Donald Trump has supported nationalized health care, excessive use of eminent domain, and once even partial-birth abortion (though now he claims to be pro-life). He seeks to silence First Amendment–protected criticism with lawsuits. Trump might well pick a justice who would repudiate the very principles for which Scalia fought.
The Senate has no constitutional obligation to fill any vacancies on the courts or in the executive branch.
Some may suggest that the Court needs nine members to function properly. This argument is simply untrue. Unlike the presidency, the Supreme Court is a collegial body. It can do its job with eight members; at the beginning of the Republic, it operated with six. The Constitution itself requires only that the Court have a chief justice and reserves to Congress the choice over its size. The Court has virtually complete control over its docket, and if it were truly feeling burdened by too much work, it could just hear fewer cases. Although the justices are taking more-controversial cases than ever, they are also taking many fewer cases than they did 30 or 40 years ago.
Any idea that the Court needs its full complement is truly a red herring. Even with only eight members, the justices will still vote. The Court will still issue decisions, just as it does when a justice is recused. The justices can even decide to hold over a case for next year, when it comes back up to full strength. If they divide 4–4 on a case, then the decision of the lower court still stands; the Court can always take the issue in another case in the future. In several of the most important cases this term, it is not even clear that Justice Scalia would have made the difference. On affirmative action, one of the liberal justices is recused (Justice Elena Kagan), so the conservatives should still prevail, 4–3. On abortion rights, the liberals on the Court already held a majority, thanks to Justice Anthony Kennedy, and so the Scalia vacancy would not change the outcome. On immigration, a 4–4 Court allows the lower court’s opinion — which struck down Obama’s refusal to enforce the laws — to stay in place. The most important case that turns on Justice Scalia is whether unions can force all employees in a workplace to support their lobbying for political candidates. Now, that law will probably survive and nervously await another day before the Court.
If President Obama were truly worried about the Court and the Constitution, he would seek to nominate a consensus nominee who would prove difficult for a Republican Senate to delay. Some have suggested lower-court judges who have served in Republican and Democratic administrations, but with little known about their constitutional views. He could even nominate his vice president, Joe Biden, who might survive confirmation because of his long service in the Senate.But President Obama has never given a sign that he considers the Constitution anything other than an obstacle to overcome on his way to a progressive paradise. He swept aside the Constitution’s limits on federal power to pass Obamacare, and he ignored his constitutional duty to enforce the laws when he unilaterally rewrote U.S. immigration policy. If the last seven years are any indication, Obama will probably choose political confrontation. He may choose a nominee for his or her political implications, such as identification as a minority, in order to use a Senate delay as a political issue in the presidential campaign. The Senate should refuse to confirm anyone, to protect the Constitution from yet another Obama attack on its fundamental purpose and structure. Senate Republicans can honor Antonin Scalia by preventing his seat from being filled by a president who has so disregarded the constitutional text that the late justice did so much to restore.
— John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. A former Bush Justice Department official, he is the co-editor, most recently, of Liberty’s Nemesis: The Unchecked Expansion of the State, just out from Encounter Books.