Americans are about to be treated to what most assuredly will be a long-term, rancorous debate over filling the vacancy on the U.S. Supreme Court left by the unexpected death of Justice Antonin Scalia. The battle is on before the nation can pay its respects to the long-term jurist who was the center of so many of these contests and was considered the guardian of conservative principles.
The war between liberals and conservatives over the ideological/philosophical direction of the court will be played out in two areas. One is the Senate, which must confirm anyone tapped for this crucial assignment, and the other is in the presidential campaign where the current potential nominees, and ultimately the eventual Republican and Democratic winners, will certainly make the court an issue in the general election.
There is nothing surprising about this. The battle for control of the high court has occurred several times in the last 50 years, and obviously will be center stage again in the nation's political theater. Beginning with the refusal to elevate Associate Justice Abraham Fortas to Chief Justice of the United States during the Johnson administration, there have been several "spectaculars" over court nominees.
Richard Nixon's first two nominees were rejected by the Senate in sensational hearings -- and the attempt to put conservative icon Robert Bork on the panel later met a similar fate. George H.W. Bush's nominee, Clarence Thomas, did win confirmation but only after one of the most prurient and silly hearings ever conducted by the Senate Judiciary Committee, an ordeal that has left him understandably resentful. As an aside, Vice President Joe Biden was chairman of that committee and presided over the hearings.
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But all these incidents of political and philosophical warfare pale when compared to what may be in store for the court and the nation with the death of Scalia. That simply the highest bench in the land may be forced to operate with only eight jurists for more than a year -- until the inauguration of a new president. Clearly that is the intention of Republicans who regard the possibility of a third liberal appointment by Barack Obama as catastrophic. And a solid wall of GOP negative votes would make the rejection of any Obama nomination a reality.
Senate Majority Leader Mitch McConnell has left little doubt that his caucus will work to that end saying that the president, in his last year office, should defer any nomination to the next occupant of the White House. But Obama is not likely to do so in the belief that to leave the court short-handed for a year would be the height of irresponsibility. The court has in its earlier days functioned for long periods without a member. But that hasn't been the case in modern times. While Bork waited it out for 108 days before rejection, it is a long way from 365 or more, which would be unprecedented.
The issues facing the court over the next 12 months are considerable including immigration and the Affordable Care Act, and constant litigation on guns and a host of social issues like abortion. Scalia led the court to a position on the Second Amendment, which historically preceding panels had rejected -- the establishment of the principle of individual rather than collective rights to bear arms.
Obama will have to make some difficult choices here. He might win over enough Republicans to overcome a filibuster should he chose a nominee that is philosophically attuned more to moderate thinking on a variety of these issues. On the other hand, to satisfy the left wing of his party in the current campaign he could reach out for a center left nominee. That would infuriate the GOP hard right conservatives. Most observers believe it also would risk bringing such social issues as abortion to the top of the campaign and probably assure a defeat in the process.
Either way, betting on this president to convince Republicans to permit him to name a third person to the court would be a long shot. The hard right conservatives whose influence in the party outweighs their numbers can be expected to make this a single issue, priority fight even at the possibility of being labeled obstructionists. McConnell has been trying to overcome that image. Good luck.
Write Dan Thomasson, an op-ed columnist for Tribune News Service and a former vice president of Scripps Howard Newspapers, at firstname.lastname@example.org.