Let's start with the county judge who pronounced US Supreme Court Associate Justice Antonin Scalia dead on Saturday. That would be Presidio County Judge Cinderela Guevara, who was shopping on Saturday afternoon when a call came through from a sheriff at the scene of Scalia's death. The Supreme Court Justice had died in his sleep, the county judge was told, at Cibolo Creek ranch, an upscale resort in far west Texas, near the border with Mexico. Local television station WFAA got the scoop interview with Guevara, who said:
After I did my job, yes... I kept playing it over and over in my mind and thought, ‘Oh my God. History is being made in Presidio County'. It’s something I’ll never forget.
She was right on the history front. As Fortune's senior legal writer Roger Parloff noted, sooner or later the Supreme Court decides 'all the most most emotionally freighted political questions' of the day.
It is hard to imagine the death of anyone in government today — including the President himself — having a greater impact on the everyday life of most Americans than that of Associate Justice Antonin Scalia.
Scalia had been a Supreme Court judge since 1986. He was the the most senior member of the conservative majority on the court, a majority that has now gone. He was known for his fine wit and an entirely literal view of the US Constitution; he had no time for those who spoke of it as a 'living' document. As news of his death spread, everything went nuts. [fold]
Suddenly, the focus was back on the government of the day, shuffling through its last year in office. Will it be President Obama who makes the appointment that could influence the Supreme Court for a generation? Or will it be the winner of the presidential election on 8 November?
The Republican candidate debate on Saturday evening was a vicious affair. Front-runner Donald Trump led the charge but all those on the stage acted like men who had had a whiff of previously unimaginable power. The debate was but one among thousands of campaign events but suddenly it was as if the White House was just a few steps away. Each was set on getting their opponents out of their way. With bare fists if necessary.
But when talk turned to Supreme Court, and what happens next, the GOP candidates presented a united front. No way should Obama be able to appoint a replacement. Even if the constitution appears to suggest that's exactly what he should do.
Trump urged Senate Republicans to 'delay, delay, delay'.
Cruz warned America was 'just one justice away' from defeats for conservative positions on abortion, gun rights and religious liberty. He urged the Senate to stand strong and say 'We're not going to give up the US supreme court for a generation by allowing Barack Obama to make one more liberal appointee'.
The battle lines were clearly set. President Obama had pledged to make a nomination. Senate Majority Leader Mitch McConnell declared it should be a job for the next president.
In response to the Republican position, Democrat Senator Elizabeth Warren, who opted not to run but is casting a long shadow over the presidential race, took to Facebook and Twitter. On her official Facebook page, Warren wrote:
Sen. McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes.
And on Twitter:
Abandoning their Senate duties would also prove that all the Republican talk about loving the Constitution is just that – empty talk.
On the Supreme Court blog, Tom Goldstein was evaluating how the politics would play out.
In thinking about how to respond to the vacancy on the Supreme Court, the administration has two priorities. First, fill the Scalia seat by getting a nominee confirmed. The stakes could not be higher: the appointment could flip the Supreme Court’s ideological balance for decades. Second, gain as much political benefit as possible and exact as heavy a political toll as possible on Republicans, particularly in the presidential election. Precisely because of the seat’s importance, this is the rare time that a material number of voters may seriously think about the Court in deciding whether to vote at all and who to vote for.
Those priorities reinforce each other. The Republican Senate leadership has staked out the position that no nomination by President Obama will move forward. Because Republicans hold the Senate majority, they have the power to refuse to hold confirmation hearings before the Judiciary Committee and/or a floor vote on the nominee. So, any effort to replace Scalia is dead on arrival unless the political dynamic in the country forces Republicans to change their minds and allow the nomination to proceed.
Not surprisingly, Republican priorities are the exact opposite. Fundamental conservative legal victories over the past two decades hang directly in the balance.
It's clear that two races are now underway. The rush to the White House has been joined by a battle, set to be fought on many fronts, between the Democrat and the Republican parties to make the Supreme Court pick. It's an appointment that will reverberate long after the winner of the 8 November election serves and then departs.
