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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withdrawn within 25 days.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.