Two UMKC professors answered questions about the Supreme Court vacancy after the recent passing of Justice Antonin Scalia. The Supreme Court is comprised of nine Justices, one Chief Justice and eight Associates. There are three living retired Supreme Court Justices. The appointment of a new associate justice could be a turning point in the presidential election.
Dr. Max Skidmore is a Political Science professor and a Thomas Jefferson Fellow. Here’s what he had to say.
Are you a Democrat or a Republican?
Party affiliation should have no bearing on the answers to whether the president should nominate a new associate justice at this time. Granted, it will have, since Democrats will say the president should not wait, and Republicans say he should, but I will answer according to the Constitution; not according to a party preference.
How long have you been a professor in political science?
I have been a political science professor for somewhat more than 50 years.
Do you agree that the new justice should be selected after the presidential election? Why or Why not?
Do I agree that the new justice should be selected after the presidential election? Absolutely not, nor do any sober constitutional authorities say so.
A president is elected for a four-year term, and has full authority for the full four years, not for the first three only. Even if the election had already taken place, and a Republican had been elected but not yet inaugurated, the sitting president would have no constitutional obligation to surrender his authority, and wait until a president of the opposition party takes office.
In fact, the Constitution itself not only gives the sitting president the authority to nominate a new justice, but says that he “shall” do so. The Senate, similarly, has the full authority to accept the presidential nomination, or to reject it. If rejected, the president should nominate another, etc., until one is approved.
The way the process has normally worked, is that the sitting president confers with leaders of both parties in the Senate, and chooses someone acceptable to them. That is the way President Reagan, a Republican, nominated Anthony Kennedy (after first submitting the name of Robert Bork, whom the Senate rejected), and a Senate dominated by Democrats confirmed his nomination.
Kennedy’s confirmation came in Reagan’s last year in office. In fact, it was at about the same time in Reagan’s term that this vacancy has emerged in Obama’s.
What was the vote? No Democrat argued that President Reagan was obligated to wait until another president took office. That would have been a silly argument then, and it is no less silly now. The vote to confirm Kennedy as associate justice in President Reagan’s last year in office was 97 to 0. That meant that all senators, Democratic as well as Republican, voted to confirm a conservative justice, recognizing that Reagan was president, and had the right to appoint someone whose views he found acceptable.
Arguments that President Obama should abdicate his constitutional obligation to nominate a justice have no merit, nor does the argument that Obama is obligated to appoint a conservative. No Democrat argued that Reagan was obligated to appoint a liberal, nor does it make sense to argue that any president should be obligated to appoint a justice with whom he or she does not agree politically.
Steve Kraske is a journalism professor and political columnist for The Kansas City Star. Here’s what he had to say.
How do you see the Supreme Court vacancy impacting the race for presidency?
I think this has the potential to become one of the biggest issues in the campaign if not the biggest. Could potentially undermine Republican prospects here in the election particularly if the GOP is seen as obstructionist to the American public in trying to fill this seat from this point forward.
Do you think the Senate will reject President Obama’s first nomination?
Based on what we’re hearing so far I think there’s a pretty good likelihood that that will happen. Yes.
Do you believe an eight Justice Supreme Court can rule on any of the important cases on Obamacare and immigration?
I think it will be difficult because the court is so evenly split there. So, I think on many cases the court will be able to continue and push the ball down the road. But on some of the hot button issues it could split and if that happens the lower court ruling on the case would uphold. And yeah that could actually gum up the works.