Obama under pressure to choose Antonin Scalia’s replacement

Nomination of a fifth liberal will push the supreme court’s axis of power to the left

The death of conservative diehard Antonin Scalia, the long-serving US Supreme Court justice, has shifted the ground under the American presidential race, raising the stakes in this year's elections.

Not only will the people decide the next incumbent of the White House in November, but control of Congress and probably the supreme court too given the uphill slog Barack Obama faces in pushing his nominee past a Republican legislature.

Resisting calls from his opponents to let the next president choose Scalia’s successor, Obama vowed to fulfil his “constitutional responsibilities” and nominate a replacement “in due time”.

Scalia’s death, at 79, loads the political bases and sent the hyperactive presidential race into overdrive, setting up a protracted battle in an election year. Within hours of his death, Republican candidates argued during their ninth debate about what is now at stake in the election and promised to block Obama’s nominee.

Front-runner Donald Trump urged Senate majority leader Mitch McConnell and other Republicans to "delay, delay, delay".


Despite conservative claims that lame-duck presidents don’t make lifetime appointments, an election-year appointment does have precedent. Although president

Ronald Reagan

nominated Justice

Anthony Kennedy

in 1987, he was confirmed in 1988, an election year.

Scalia was, as Obama put it on Saturday, "a larger-than-life presence on the bench". An Italian American married to Irish-American Maureen McCarthy, they jokingly called their union "a mixed marriage". On one Washington social occasion, Scalia attended a céilí organised by Jane Sullivan Roberts, Irish-American wife of chief justice John Roberts, and even managed to shine on the dance floor.

The Supreme Court has had to contend with a much trickier choreography in recent years. Whatever progress is made in Washington these days – and there is little amid a poisonous partisan climate – big social, religious and political issues regularly fall to the nine-judge court to act as referee in a complex constitutional and ideological dance.

Same-sex marriage was legalised across the US in a five-to-four decision in Obergefell v Hodges in June. Scalia, in his typically colourful dissent, skewered the argument that marriage brings freedom of intimacy: "One would think that freedom of intimacy is abridged rather than expanded by marriage. Ask the nearest hippie."

Last week the court blocked Obama’s climate-change regulations for power plants. Another key Obama objective, protecting millions of long-resident illegal immigrants from deportation – for him, a half-way measure in the absence of comprehensive immigration reform that will never pass Congress – sits with America’s highest court.

Discrimination, trade union rights, contraception and abortion are among the other battleground issues the court has to weigh.

Scalia's sudden death while on a quail-hunting trip in Texas paves the way for Obama to nominate a fifth liberal who will push the court's axis of power to the left. There are three consistent conservatives on the bench – chief justice Roberts and justices Clarence Thomas and Samuel Alito – and four unwavering liberals: justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Justice Kennedy, a Reagan appointee like Scalia, is a moderate, often voting with the liberal bloc on social issues such as gay marriage.

If Scalia’s seat is not filled, the court would be tied on decisions, leaving lower-court rulings to stand and turning the court into a lame duck, much like Obama in his final year in power. Sri Srinivasan (48), the India-born moderate on the DC circuit court of appeals (a feeder to the higher court) is among the favourites to succeed Scalia.

Republicans will do everything to block Obama. Presidential candidates regularly try to spook voters on the campaign trail that the next president will pick up to four justices, given the court’s age profile.

Scalia’s death has made those anxieties real in a way that will help White House hopefuls crank up the significance of the election.

Senate obstructionist and Texas senator Ted Cruz, second in the polls, has warned that another Democratic president would erode religious liberties and conservative morals through the court. Cruz will no doubt use the nomination to mobilise conservatives to fight what he will claim as another offensive action by the Washington liberal elite.


The make-up of the court is a big driver of election money too and Scalia’s death will help candidates alarm donors and fill their boots. On the Democratic side,

Bernie Sanders


Hillary Clinton

voice warnings too, particularly about how the court turned campaign finance into a free-for-all through the Citizens United decision in 2010. For them, a conservative court would add to that catastrophe.

Obama is president for another 339 days. The longest confirmation for a supreme court justice was 125 days when president Woodrow Wilson-nominated Louis Brandeis, America's first Jewish justice, faced a resistant Congress.

That record, however, may well be broken this year.