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| © Paul Hosefros/The New York Times |
Within hours of Justice Scalia’s death, both sides began laying the groundwork for what could be a titanic confirmation struggle fueled by ideological interest groups. The surprise opening also jolted the presidential campaign and could shift the conversation toward the priorities each candidate would have in making such a selection.
Mr. Obama would be the first president since Reagan to fill three seats on the court. But Senate Republicans made clear they would not make it easy for him, arguing that with just 11 months left in office he should leave the choice to the winner of the November general election. With 54 seats in the Senate, Republicans have the power to block the confirmation of any nomination sent by Mr. Obama if they stick together.
“The American people should have a voice in the selection of their next Supreme Court justice,” Senator Mitch McConnell of Kentucky, the Republican majority leader, said in a statement. “Therefore, this vacancy should not be filled until we have a new president.”
Senator Chuck Grassley of Iowa, the Republican chairman of the Judiciary Committee, agreed, citing “the huge divide in the country and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda.”
Though the White House made no formal statement about a replacement, advisers to Mr. Obama made clear privately that he had no intention of leaving the matter to the next president. His Democratic allies made the case that Republicans would be irresponsible to block an appointment.
“It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” said Senator Harry Reid of Nevada, the Democratic minority leader. “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.”
Even without the instant standoff, the opening of a seat on the Supreme Court was sure to roil the presidential campaign. Both sides will use the vacancy to rouse the most fervent members of their political bases by demonstrating the stakes in the election. Republicans will likely talk about the need to stop Mr. Obama from using the court to advance his liberal agenda while Democrats will warn their supporters about the dangers of a Republican president making the selection.
The unexpected timing of the vacancy will force Mr. Obama to make a choice about how far he is willing to go to confront Republicans and inject social issues like abortion into the fall campaign. Will he opt for a relative moderate in hopes of winning over enough Republicans to actually seat a replacement despite Mr. McConnell’s warning? Or will he choose a more liberal candidate at the risk of being blocked on the theory that it might galvanize Democratic voters?
The situation also could prove complicated for Mr. McConnell, who since winning the majority in 2014 has labored to shed the obstructionist label and prove that his caucus can govern responsibly. Approving an Obama nominee could provoke a backlash from conservatives, but a prolonged battle would put Senate Republicans in the middle of a campaign where Mr. McConnell had hoped not to be.
Mr. Obama has already installed two reliable liberals on the high court, Justices Sonia Sotomayor and Elena Kagan, and adding another in place of Mr. Scalia’s formidable conservative voice could alter jurisprudence on issues like criminal justice, civil rights and affirmative action. The fate of Mr. Obama’s own programs could be affected, including his liberalization of immigration deportation rules and his environmental crackdown on coal-fired power plants.
With Democrats and independents who caucus with them holding 46 seats in the Senate, Mr. Obama already faces a challenge getting to the simple majority needed to confirm a nominee and would face an even steeper climb to rally the 60 votes needed if Republican opponents mount a filibuster to his choice.
Filibusters of Supreme Court nominations are rare, but the Senate blocked the confirmation of Abe Fortas to chief justice in 1968 after such an action. When Democrats were last in the majority and rewrote Senate rules to bar filibusters for lower court judges, they deliberately left it possible to filibuster nominations to the Supreme Court. As a senator, Mr. Obama supported a filibuster against Justice Samuel Alito, who was nonetheless confirmed in 2006.
While seats on the Supreme Court were sometimes left open for extended periods in earlier years of the republic, that has been less true in modern history. According to the Congressional Research Service, the longest the Senate has taken to act on a Supreme Court nomination since 1975 was that of Robert H. Bork, who was rejected 108 days after being selected.
But critics of Mr. Obama’s said the timing of the vacancy, coming in the middle of a hotly contested presidential election, should change the calculus. “It has been 80 years since an election-year vacancy has been filled and the politics of the court has changed drastically since those days,” said Shannen W. Coffin, who was counsel to Vice President Dick Cheney.
But Democrats noted that a Democratic Senate confirmed Justice Anthony M. Kennedy in February 1988, an election year, although the vacancy had come up the year before. Nan Aron, president of the liberal Alliance for Justice, said the Supreme Court should “not become a casualty of the politics of destruction, denial and obstruction.”
This was a situation the White House did not expect to face, given decisions by the older justices not to retire last year when a confirmation process would have been less affected by the election. But the White House has a thick file of potential nominees, and allies were urging it on Saturday to move quickly to send a choice to avoid giving Republicans an excuse to delay.
Democrats said plausible candidates could include a series of appellate judges like Merrick B. Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, who has been considered by Mr. Obama before. Others mentioned were two other judges in his circuit, Sri Srinivasan and Patricia Millett, and Jacqueline Nguyen of the Ninth Circuit.
Some mentioned Kamala Harris, the attorney general of California who is currently running for Senate. On Capitol Hill, some Democrats were promoting Senator Cory Booker of New Jersey, a Rhodes Scholar and Yale Law School graduate who at age 46 would presumably have a long tenure on the court.
No matter whom he picks, Mr. Obama can expect a fight that will help define his legacy — and perhaps help determine who fills one other vacancy that comes up next Jan. 20.
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