The void which must be filled

Published: February 19, 2016 - 15:29

Nikhil Thiyyar Delhi 

“In a big family, the first child is kind of like the first pancake. If it's not perfect, that's okay, there are a lot more coming along”. This is one of the many controversial quotes attributed to Justice Antonin Scalia during his lifetime. Even in death, his legacy remains controversial. For one, conspiracy theorists have come out in full force and suggested foul play. The fact that a local judge did not order an autopsy has set the alarm bells ringing of the fringe Republican right which questioned the circumstances his body was found in. Justice Scalia’s body was found on a luxury hunting ranch with a pillow on his face, an unusual place for a pillow. Conspiracy theorists have pointed towards everything from the Illuminati to the heart attack gun, an alleged secret CIA weapon. Law enforcement agencies have however ruled out any foul play.

 As if the conspiracy theories were not enough, adding fuel to the fire is President Barack Obama’s decision to not attend the funeral of Justice Scalia. Many right-wing commentators have rightly pointed out that this is an evidence of President Obama’s political bias and is a partisan move. These storms in a teacup aside the larger question which arises are whether President Obama will be able to nominate another Liberal judge as the Associate Justice of Supreme Court of the United States in place of Scalia. Justice Antonin Scalia’s death will prove to be a litmus test for the political system of America. Can a government govern in a partisan climate?

Moments after reports came streaming in of Scalia’s death, Republican politicians were already insisting that they would not let Obama nominate Scalia’s replacement. Senate leader Mitch McConnell made the following statement to the press,” The American people should have a voice in the selection of their next Supreme Court Justice," he said. "Therefore, this vacancy should not be filled until we have a new president”. McConnell’s statement is symptomatic of the increasing polarization of American politics. Day by day the liberal politicians get clustered in the Democratic party and the conservative politicians get clustered in the Republican party. As a result, America has seen levels of polarisation which it has never seen before. When Republicans argue that Obama should not be allowed to nominate a replacement for Scalia they are embracing a modified version of the Thurmond rule. The Thurmond rule states that judicial nominees should not be nominated in the six months leading up to an election. Ironically this rule was propounded by one of the Senate’s most notorious racists Strom Thurmond, after whom the rule is named.

However, this rule which the Republicans are hoisting with much gusto is not hidebound. At least, fourteen Supreme Court justices have been confirmed in election years. To understand why nominating Scalia’s replacement might be the most politicised event of recent years it is essential to understand how the Supreme Court is currently structured. Over the past twenty-five years, the Supreme Court bench has been split between five conservatives and four liberal justices. As a result, the court has increasingly adopted more and more conservative interpretations of the law setting aside the objections of the four liberal judges. With Scalia’s death, the Supreme Court’s ideological makeup is up for grabs for the first time in nearly three decades. If the Senate does not confirm Obama’s nominee and it becomes increasingly likely that it will not, then the Presidential elections will essentially become a referendum on the replacement of Justice Scalia. So an open seat would mean that the 2016 election wouldn't just determine whether the Supreme Court has a liberal or conservative majority in 2017 — it could determine the ideological makeup of the Supreme Court for decades to come.