What Happens to the Supreme Court? Texas Tech Professors Discuss Future of Court Without Scalia

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From the time reports were confirmed Saturday that Supreme Court Justice Antonin Scalia, 79, had been found dead in a resort in West Texas that morning,  politicians and political pundits began weighing in on what will happen with the court in Scalia’s absence. 
 
“I think like most anybody else in politics, my thought was– what next?” explained Timothy Nokken, professor of Political Science at Texas Tech University.
 
On Saturday, President Obama gave some clues about what will happen next, he explained, “I plan to fulfill my constitutional responsibilities to nominate a successor in due time.  There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.  These are responsibilities that I take seriously, as should everyone.  They’re bigger than any one party. “
 
But the president’s plans to do so will face opposition, many republicans like Senators Mitch McConnell and Ted Cruz weighed in saying they believe the next president should be the one to nominate the new Supreme Court Justice. 
 
From privacy rights to gun use, Scalia had a huge impact on American law from the time he joined the Supreme Court in 1986.  It is no secret that his successor will have a chance to do the same. 
 
“Scalia was probably the most visible divisive figure on the court, conservatives love him, liberals hate him, and his vacancy creates a real void of a strong, forceful conservative voice,” Nokken explained. “Which a lot of people on the right are going to miss, and those on the left are going to say, ‘here’s our chance to replace someone like that.'”
 
“You can’t teach constitutional law and not mention Justice Scalia,” said Professor Richard D. Rosen, who teaches constitutional law at Texas Tech.
 
Rosen also has many unanswered questions about the fate of the Supreme Court in Scalia’s absence, especially with recent trends in appointments to the court.  
 
“It seems to me that over the last four or so decades, especially starting in the 1980’s, the confirmation process has become much more heated,” Rosen explained. 
 
Rosen said that the power of the president to appoint Supreme Court nominees is often a hot topic in elections, but now he predicts the court will take center stage in many debates on the campaign trail.
 
“I think we’re going to have many Republicans who are going to try and block [President Obama’s nomination] I think it’s become a political issue that really wasn’t present before. Presidential candidates talk about it and this is going to bring the Supreme Court to the forefront,” Rosen said. 
 
Timothy Nokken said it’s possible president Obama could attempt to make an appointment to the Supreme Court while the Senate is in recess, but he said in the past recess appointments have been deeply opposed by the legislature. 
 
Nokken believes that whether the person Obama nominates for the Supreme Court fills Scalia’s seat on the bench depends largely on the Senate.
 
“I think the most important thing right now is trying to figure out how the Senate is going to proceed,” he said. “I am confident that Obama is going to deliver on his word, whether you agree with him or not, he’s going to nominate someone. I think that person is going to be somebody, that Obama prefers to Scalia, but probably not a liberal bomb thrower as Republicans would say.”
 
Nokken said that in addition to what the Senate decides as a whole, individual senators could play a role in whether Obama’s nominee is successful. He explained there is a possibility senators like Marco Rubio or Ted Cruz could work to block the nomination or even filibuster to make s political statement. 
 
However, Nokken added, that blocking a nomination by Obama is a risk for Republicans, he said that resisting a court nomination could land the GOP with the stereotype as “the party of no” right before election time. 
 
Rosen believes whether Scalia’s seat will be filled during Obama’s presidency will depend on who he nominates. 
 
“I think a lot of it depends upon the type of person he nominates, if he nominates someone who is fairly moderate, Republicans may have a hard time blocking the nomination,” Rosen said. “If he nominates someone who is far to the left for example, I think it is less likely that person will be confirmed.”
 
The Supreme Court is scheduled to hear several significant cases in the coming weeks including some about abortion rights and immigration. Rosen explained that with eight justices on the court now, if their votes end up in a tie, the lower court’s original ruling will stand.
 
Nokken believes that both in the Supreme Court and in the legislature, Scalia’s absence could trigger major policy-altering decisions. 
 
“When we have a situation like we have now with divided government and deeply divided parties, one of the options for better or worse is that a lot of changes to policy take place with the regulatory process,” Nokken said. 
 
Both Nokken and Rosen met Scalia during the justice’s recent visits to Texas Tech’s law school, both were impressed by his wit and friendly nature. 
 
“You always know where [Scalia] stands, there’s no ambiguity and I’m going to miss it, he pretty much said what he believed and is not a shrinking violet,” Rosen explained.  Rosen added that while Scalia’s seat could be filled, his legacy is one-of-a kind.
 
“At least in my life time there’s never been anyone quite like him,” Rosen said. 

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