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Est. April 5, 2002
February 18, 2016 - Issue 641

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Replacing Scalia
Does an Obama Appointment
Have a Chance?

"Will we see judicial gridlock?
Will there be a Constitutional struggle?
Will the battle that is likely to ensue
lead the public to engage in greater
civic participation or at least increase
their interest in the political process?"

On Saturday, February 13th we learned of the passing of Supreme Court Justice Antonin Scalia. Although he was no friend of the progressive community, we offer condolences to the Scalia family.

Four of the nine sitting Supreme Court Justices are over the age of 75. Antonin Scalia was 79 at the time of his passing. The remaining septagenarians and octagenarian are Justices Breyer (77), Kennedy (79), and the Notorius RBG – Justice Ruth Bader Ginsburg, who is 82. The loss of one or more justices over the next few years is inevitable and should be on the radar of any and everyone who has the right to vote. The death of Scalia highlights the importance of the upcoming 2016 presidential election.

Now, as President Obama has yet another chance to fill a Supreme Court vacancy, we’ll see one of the most consequential decisions a president can make. We’ll also see one of the primary reasons a party wants control of the U.S. Senate. With Republicans in control, in a presidential election year no less, does an Obama appointment have a chance? Will we see judicial gridlock? Will there be a Constitutional struggle? Will the battle that is likely to ensue lead the public to engage in greater civic participation or at least increase their interest in the political process?

I certainly hope so because the stakes are so high. It’s too early to answer any of these questions, but let’s take a look at what has happened historically.

Since it’s inception, there have been 112 United States Supreme Court Justices. Fifty of these justices, including Justice Scalia, have died in office. Since 1789, there have only been two ways justices have left the bench – 55% have left through their own volition, either resigning or retiring, and 45% have died in office. Although the U.S. Constitution allows for the removal of a judge via the impeachment process, the nation has yet to use this option. So,  with an almost lifetime guarantee, being appointed and confirmed as a justice to the U.S. Supreme Court is arguably a more powerful position than that of the president of the United States.

Supreme Court cases have shaped and changed the nation in ways that the executive and legislative branches either don’t have the power or the will to do. In recent times, our nation has been rocked by Supreme Court decisions in cases like:

  • Shelby County v. Holder, a decision that essentially gutted the 1965 Voting Rights Act, and opened the door for many states, most in the South, to implement voter restrictions.
  • Citizens United v. Federal Election Commission, which made it easier for deep pocketed individuals and corporations both domestic and abroad to buy elections.
  • Bush v. Gore, the case that resolved the dispute surrounding the 2000 presidential election which resulted in George W. Bush being ushered into the White House – paving the way for the Chief Justice Roberts and Associate Justice Samuel Alito appointments ergo Citizens United and Shelby.

In addition to Scalia’s seat, the next president might easily appoint three other new justices to the Court, given the advanced ages of the current justices. Given that 45% of Supreme Court Justices die in office, pressing the presidential candidates for who they might appoint if elected should be standard fare. With the passing of Scalia, we will no doubt continue to hear much more from the candidates on this issue. Editorial Board member and Columnist, Sharon Kyle, JD, is the Co-Founder and Publisher of the LA Progressive an online social justice magazine. With her husband Dick, she publishes several other print and online newsletters on political and social justice issues. In addition to her work with the LA Progressive, Ms. Kyle holds a Juris Doctorate, is an adjunct professor at Peoples College of Law in Los Angeles, and sits on the board of the ACLU Pasadena/Foothills Chapter and the Progressive Caucus of the California Democratic Party. Click here to contact the LA Progressive and Ms. Kyle.

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David A. Love, JD
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