By Gloria J. Browne-Marshall
Conservative Associate Justice Antonin Scalia, 79, died on Saturday. Justice Scalia’s death impacts all three branches of government.
Conflicts over President Barack Obama’s power to nominate Scalia’s replacement and the Senate’s refusal to vote on his nominee have over-shadowed the affect Scalia’s absence will have on the union membership, voting rights, immigration, abortion, affirmative action, and the Affordable Care Act cases pending before the high Court.
The nomination of a new justice falls under Article II, section 2, of the Constitution.
It gives the President the power to nominate judges of the Supreme Court. However, the Senate has the sole power to approve and confirm the President’s nominee to the Court.
The Senate holds a hearing to question the nominee before the vote.
The Constitution does not set out a time limit on the President’s nomination or the Senate’s vote.
The Court can decide cases with eight justices. A contentious relationship between this Democratic administration and Republican- controlled Congress has escalated.
Within hours of Scalia’s death, Republican Senate Majority leader Mitch McConnell in a television interview stated that he would refuse to consider a replacement and that that decision should be given to the winner of the upcoming presidential election.
Once the nomination takes place, the process is controlled by the Senate Judiciary Committee chaired by Republican Senator Chuck Grassley of Iowa.
With eleven months in his second term, President Obama stated he will make a nomination. Possible nominees include U.S. Court of Appeals Judge Sri Srinivasan, 48, born in India, who was confirmed to his current judicial position by the Senate 97-0 in 2013. U.S. Court of Appeals Judge Jane Kelly of Iowa who was confirmed by the Senate 96-0 in 2013.
African-American names Kamala Harris, 51, the California attorney general, Judge Patricia Millet of the District of Columbia Circuit and U.S. Appellate Judge Jacqueline Nyguyen, born in Vietnam.
In addition to Kamala Harris, possible African-American nominees include U.S. Attorney General Loretta Lynch, who is serving out the remainder of Eric Holder’s term, and U.S. Appellate Judge Paul Wotford, 48, who ascended to the bench in 2012. Judge Wotford served as a law clerk to Justice Ruth Bader Ginsberg. Conservatives have vowed to reject any nominee.
Justice Scalia was known for his racially charged remarks during oral arguments and caustic opinions in civil rights cases.
During an oral argument involving Alabama’s challenge to the 1965 Voting Right Act, Justice Scalia disparaged the Act as an entitlement program.
In an oral argument about affirmative action policies in Texas, Justice Scalia mused that Black students were not qualified to attend the University of Texas.
Cases involving union membership, voting rights, immigration, abortion, affirmative action, Executive Power, and the Affordable Care Act are pending.
The absence of Justice Scalia will probably lead to more progressive outcomes.
Civil rights cases which had been decided in favor of conservatives by 5-4 will now be 4-4 decisions or 5-3 in favor of progressives. A 4-4 leaves the lower court decision in place.
Current Court conservatives include Chief Justice John Roberts, Justices Clarence Thomas, Alito, and Anthony Kennedy.
However, when Chief Justice Roberts upheld President Obama’s landmark Affordable Care Act, he was deemed not conservative enough.
Although Supreme Court nominees are not supposed to have any political agenda, some Republican Presidential candidates have openly pledged to only nominate jurists who will uphold conservative ideals.
Justice Scalia was a vocal opponent of the Obama administration, especially its landmark Affordable Care Act.
He often stood against unreasonable governmental searches.
But, he was known as a champion of States rights, except in Florida’s infamous Bush v. Gore voting case, which gave the contested Presidential election to Republican candidate George W. Bush in 2000.
Controversy has surrounded Justice Scalia over his 30 years on the bench.
Nominated by conservative Republican President Ronald Reagan in 1986, he was born in 1936, in Queens, NY. Known as an originalist, Justice Scalia referred to himself as a textualist who decided cases as the Framers of the Constitution would have in 1787.
His most recent book is titled “Reading Law: The Interpretation of Legal Texts.”
According to the New York Times, Scalia appeared to have reservations about the 1954 “Brown v. Board of Education, which struck down segregation in public schools.”
An avid hunter, Justice Scalia was found dead on Saturday morning while on a hunting trip in West Texas.
His 2008 decision in District of Columbia v. Heller expanded the Second Amendment right to bear arms.
Gloria J. Browne-Marshall is a legal correspondent for the African-American News & Information Consortium (AANIC) and an associate professor of constitutional law at John Jay College in New York City.
She is the author of the forthcoming book “The Voting Rights War: 100 Years of NAACP Cases.”