The Supreme Court Vacancy and its Implications

THE SUPREME COURT VACANCY

AND ITS IMPLICATIONS

Joshua Baca and Lena Koncha, DDC Public Affairs

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Historical Precedent

Since 1900, the Senate has voted on eight Supreme Court

nominees during an election year and 6 were confirmed.

• Several of those were for seats that had become vacant in the

previous non-election year.

• The Senate has never taken more than 125 days to vote on a

successor from the time of nomination.

• On average, a nominee has been confirmed, rejected or

withdrawn within 25 days.

• When Justice Antonin Scalia died, 342 days remained in

President Obama’s term [New York Times]

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• Within an hour of the news, Senate Majority Leader, Mitch McConnell

came out saying the Senate should not confirm a replacement for

Scalia until after the 2016 election.

• With a vacancy on the Court, the responsibility to fill it falls on

President Obama and the Senate; pursuant to Article II, section 2 of the

Constitution, the president nominates justices of the Supreme Court, and

the Senate confirms them with a majority vote.

• If Justice Scalia is replaced with a liberal, that would tilt the Supreme

Court to a 5-4 liberal majority.

• It would be unprecedented in recent history for the Supreme Court to

go a year with a vacant seat.

Scalia Vacancy & What it Means

February 13, 2016 Justice Antonin Scalia passed away.

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Many cases are now facing an eight-member split. If the court ties,

the decision of the appeals court remains in place, without setting

a nationwide precedent.

Key Cases Facing the Court

• Clean Power Plan: Scalia presumably was among the five

justices voting to suspend the Obama administration’s

sweeping plan to reduce CO2 emissions from the nation’s

electrical grid.

• Immigration: The Supreme Court is also considering whether

President Obama exceeded his powers in trying to shield

millions of illegal immigrants from deportation.

• Public-sector unions: Conservatives teed up the dream

case with Friedrichs vs. California Teachers Assoc., which

promised to overturn a 1977 decision, Abood v. Detroit Board

of Education, that allows laws requiring government workers

to pay union dues as a condition of employment.

• Class actions: The Roberts court has steadily rolled back the

excesses of the class-action bar, issuing rulings that enforce

contract terms requiring individual arbitration and requiring

plaintiff lawyers to state their claims with precision.

• Affirmative action: The Supreme Court in July agreed

to consider again whether race-conscious college

admission plans are constitutional.

• Obamacare: Little Sisters of the Poor v. Burwell is yet

another challenge to the Obama administration’s rule

requiring religious employers to provide contraceptive

care in their insurance benefits.

• Abortion: The conservative majority was poised to

expand the concept of “undue burden” on a woman’s

right to abortion to include regulations on providers in

Whole Woman’s Health v. Hellersted.

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• Would be the first South Asian

American and Hindu on the

Supreme Court.

• D.C. Circuit Court of Appeals

judge, was already vetted by

the Senate (and confirmed 97-0

in 2013).

• Voted against the Clean Power

Plan stay at the D.C. Circuit

Court level.

• Has defended giant corporations,

such as ExxonMobil.

• Was an assistant solicitor general

under President George W. Bush.

Judge Sri Srinivasan

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• At the top of the list is

Democrat Loretta Lynch who

was confirmed by the Senate to

run the Justice Department in

April and who would be the first

black woman to serve on the

court. [Washington Post]

• Senate already vetted Lynch

and that 10 Republicans voted

for her confirmation.

• Lynch can help motivate the

Democratic base, making life

harder for vulnerable Senate

Republican incumbents who are

up for reelection in swing states.

Attorney General Loretta Lynch

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“The White House is vetting Republican Nevada

Gov. Brian Sandoval for the Supreme Court

vacancy created by Justice Antonin Scalia’s

death, two people familiar with the matter said,

and President Barack Obama said he won’t back

down on sending a candidate to the Senate.”

[WSJ 2/24/2016]

• Sitting governor of Nevada

• Mr. Sandoval is a former federal

judge with a moderate record

• Confirmed unanimously in a 2005

Senate vote

• Has an approval rating north of

66% among Nevada voters

[Morning Consult]

Nevada Governor Brian Sandoval

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PAUL WATFORD • Obama appointee on the 9th Circuit and has been repeatedly mentioned as a potential

Obama Supreme Court nominee

• He was confirmed in 2012, by a 61-34 vote

PATRICIA ANN MILLETT • 52, sits on the D.C. Circuit and is part of a slate of three nominees Obama put forward

for that court in 2013

• Millett was confirmed by a 56-38 vote in December 2013 and is popular in both parties

MERRICK GARLAND • Clinton appointee on the D.C. Circuit who has long been discussed as a potential

Supreme Court nominee and is considered a moderate

• At 63, he is a decade older than a typical Supreme Court nominee in the modern era

JACQUELINE NGUYEN • In her early 50s, is a judge on the 9th Circuit

• Her confirmation in 2009 was unanimous

Other Top Democratic Contenders

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• California Attorney General Kamala Harris

• Currently running for Boxer’s seat in

California

• U.S. District Judge Ketanji Brown Jackson

• U.S. Senator Amy Klobuchar (D-MN)

• 1st Circuit Judge David Barron

• Senate voted 53–45 for final confirmation

to the court

• Attorney Kannon Shanmugam

• CA Supreme Court Justice Mariano-

Florentino Cuéllar

Less Likely Democratic Picks

• 8th Circuit Judge Jane Louise Kelly

• Supported by Republican Senator Chuck

Grassley

• Appellate Judge on 11th Circuit Adalberto

Jordan

• Confirmed to the seat in a 94–5 vote

• Senator Elizabeth Warren (D-MA)

• Senator Orrin Hatch (R-UT)

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BRETT KAVANAUGH • 51-year-old judge at the U.S. Court of Appeals for the District of Columbia Circuit

• Regularly named as a favorite Republican pick for the high court

DIANE SYKES • Sykes, 58, has been a judge on the Chicago-based 7th U.S. Circuit Court of Appeals since 2004 after she was

nominated by Bush

WILLIAM PRYOR • 53-year-old judge has served on the Atlanta-based 11th U.S. Circuit Court of Appeals since 2004 after being

nominated by Bush

PETER KEISLER • 55, is an attorney at Sidley Austin LLP who was nominated in 2006 by Bush to fill Supreme Court Chief Justice

John Roberts' seat on the D.C. Circuit

• His nomination was blocked by Senate Democrats

PAUL CLEMENT • Bush administration solicitor general is now a partner at Bancroft PLLC. He has argued more Supreme Court

cases since 2000 than any lawyer in or out of government, according to his firm.

MIGUEL ESTRADA • Partner at Gibson, Dunn & Crutcher is another Bush pick for the D.C. Circuit whose confirmation was blocked by

Senate Democrats [E&E Publishing]

Potential GOP White House Picks

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• Republican 54-seat majority is in serious

danger in 2016

• Republicans are already fighting to defend seats in

six states Obama carried twice: Florida, Illinois,

New Hampshire, Pennsylvania, Ohio and

Wisconsin

• Democrats not only have fewer seats to defend,

but the ones that are most at risk come from

Colorado and Nevada, territory that has leaned

Democratic in recent years [Politico]

Battle for Senate Control

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Battle for Senate Control

Republican 54-seat

majority is in serious

danger in 2016

Democrats have fewer risky

seats to defend. Mainly

Colorado and Nevada,

which have leaned

Democratic in recent years*

*Politico

Republicans are already

fighting to defend seats in six

states Obama carried twice:

Florida, Illinois, New

Hampshire, Pennsylvania,

Ohio and Wisconsin

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The Implications for the Nation of a Changing Supreme Court

Regardless of what happens with Justice Scalia’s

replacement, there will be likely at least three other Justices

to be appointed over the next 4-8 years of the next

President’s term

– Justice Ruth Bader Ginsburg will be nearly 84

– Justice Anthony Kennedy will be over 80

– Justice Stephen Breyer will be 78

Stakes are extremely high for not only for Scalia’s

replacement, but the implications on Senates races and

the direction of the country’s ideological leanings

should a Democrat get elected to the Presidency.

THANK YOU Joshua Baca and Lena Koncha, DDC Public Affairs