Rutgers Law Professors Weigh President's Decision on SCOTUS Vacancy

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Constitutional law experts say President Obama has a few paths to take when choosing a nominee to fill Antonin Scalia's seat on the U.S. Supreme Court.

Two Rutgers Law Professors – both experts in constitutional law – say there is no question that President Barack Obama will quickly select a nominee to fill the vacancy of deceased Supreme Court Justice Antonin Scalia before his term as president is done.

The question, they say, is whether Obama’s nominee will be a true liberal that he desires to fill the vacancy of the New Jersey-born Justice, who died suddenly on February 13 at a hunting resort in Shafter, Texas, or whether the president will nominate a moderate who may have more of a chance of getting approved by the Republican-controlled Senate.

“If Obama really wants to fill the seat he might pick someone like Elana Kagan, a candidate who is moderate, and he may be able to pick off enough Republicans to get it through,” said Professor George Thomas III. “Or he may pick someone he really wants to fill the court. In that case, it’s going to be a battle.”

Thomas, the Judge Alexander P. Waugh Sr. Distinguished Scholar, is the author of The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants.

Kagan was appointed by President Obama in 2010 to fill the seat of Justice John Paul Stevens. Her appointment effectively divided the court into a 5-4 split, with five traditionally conservative and four traditionally liberal justices. With Scalia’s death, the new appointment could shift the tide of the court toward a more liberal body, the professors say.

“There’s been a long period of time where there’s been relative balance on the court,” said Professor Bernard Bell, a constitutional law expert who clerked for a former Supreme Court justice. “Even with a moderate there still may be balance.”

Both professors said the Senate could try a number of tactics to stall the nomination – by not holding hearings or choosing not to vote on the president’s nominee. Bell predicted the Senate may try to save face by criticizing the nominee’s record or politics, rather than looking like its members are being disrespectful to by stalling the selection.

The Rutgers law professors point out that one of the biggest consequences of vacancy is what happens to the cases already on the Supreme Court’s docket. Among the pending cases is one involving the University of Texas at Austin over affirmative action and another  is a challenge to President Obama’s executive orders, which would allow up to 5 million undocumented people to gain semi-legal status.

 “With a 4-4 vote, it effectively affirms the lower court’s decision,” explained Thomas, but allows the issue to be brought before the Supreme Court again for re-argument, once nine justices are seated.

Bell predicted that if such weighty cases are decided before the ninth justice is appointed, then it is likely those cases may be re-argued before the Supreme Court a second time.

The professors said the president’s goal would be to get someone appointed in time to begin the new term, which starts in the fall after the Supreme Court’s summer break. “As someone who has been watching the news for seven years, I think he’ll choose someone he really wants to see on the court,” predicted Thomas.

Bell concurred: “My suspicion is President Obama will nominate someone dynamically different – whether he nominates someone very liberal or someone more moderate – he will nominate someone as soon as possible.”

Supreme Court Justice Anthony Scalia; Collection of the Supreme Court of the United States