The Search for Antonin Scalia’s Replacement and the High Courts Connections to California

Richard Rubin

Attorney Richard Rubin has taught public policy at USF, UC Berkeley and other institutions and is Chair of the California Commonwealth Club Board of Governors


The death of Antonin Scalia has triggered a national guessing game over who might be chosen to replace him.

This occurs amidst an already tumultuous presidential campaign which suddenly raises the stakes even higher than anticipated.

Several prominent Californians have been mentioned though few are taking the suggestions seriously. They are California Chief Justice Tani Cantil-Sakauye, seated only in January 2011.

Another is Attorney General, Kamala Harris, who is in a tough race of her own for the U.S. Senate seat being vacated by Barbara Boxer.

While California has not been a major producer of U.S. Supreme Court justices, those few from here who ascended to the nation’s highest court had significant impacts, as did their California-bred appointers.

The last Californian to be appointed and became its Chief Justice, was Earl Warren, tapped in 1953 by President Dwight Eisenhower.

Warren, a Republican Governor of California, was thought to be a reliable vote that would appease law and order conservatives and not stray too far from political orthodoxy.

It turned out otherwise when some of the liberal decisions made during his tenure are seen in retrospect as having revolutionized the Court.

Most notable was the 1954 landmark ruling in Brown v. Board of Education that ended segregation in public schools for which Warren wrote the unanimous opinion.

The Warren Court set the stage for many of the judicial battles involving civil rights, civil liberties, and the extent of judicial and federal powers which remain the subject of intense focus throughout the country and on the court today.

In addition to Brown, the Warren Court’s momentous rulings on redistricting, freedom of speech, freedom of religion, criminal procedure, and privacy and reproductive rights, to name just a few, have all been since revisited by a court that has veered much more to the right in recent years during which Scalia was the undisputed intellectual leader of the conservative wing.

In the history of the court only three other Californians have gone to the high bench: Stephen J. Field (1863-1897); Joseph McKenna, (1898-1925); and currently Anthony M. Kennedy whom President Ronald Reagan appointed in 1988. Kennedy has been a pivotal vote siding with both the conservative and the liberal wings on different occasions, thereby giving his views considerable weight.

Scalia’s death, depending upon his successor will draw even greater attention to Kennedy’s positions both now and after the appointment is made.

To say that there are strong philosophical divisions on a number of controversial cases that will be coming before the court during this term is an understatement.

These include whether to uphold the Affordable Care Act, voting rights, racial preferences in college admissions, public employee unions and death penalty cases to name only some of the most prominent.

A bitterly debated abortion rights case has just been argued with implications for the landmark decision in Roe v. Wade in which then Chief Justice, William Rehnquist, appointed by President Richard Nixon, another Californian, was one of the two dissenting votes.

The likelihood of 4-4 splits is very high which means they could be argued now with deadlock a predictable result that would have the effect of maintaining the status quo by sustaining the rulings of lower courts.

Or they could be held over for re-argument once a ninth justice has been confirmed.

Either way the decisions would have no precedential value leaving the law in these instances in a confusing state of limbo with little guidance for lower courts.

Vacancies can only be filled by the Senate which the Constitution declares must give its “advice and consent” before any presidential nominee can be confirmed.

With the majority GOP Senate leadership having flatly ruled out even the idea of holding hearings for any nominee, in the highly toxic political atmosphere, President Obama’s prospects for choosing an acceptable successor for Scalia is slim to none given the partisan math.

Nominations are subject to a “cloture” vote which formally terminates all Senate debate providing 60 Senators vote to end it. With the current Senate breakdown of 54 Republicans, 44 Democrats and 2 Independents, sixteen Republicans would have to vote for cloture along with every Democrat.

It turns out that a Supreme Court nomination battle in the final year of a President’s term is unprecedented in modern history, and it is just as unusual to be having this fight in an election year, particularly since the incumbent will not be on the ballot.

Interestingly, Justice Kennedy was confirmed in the final days of President Reagan’s tenure in 1988. However Kennedy was nominated a year earlier in a prolonged process after Robert Bork was defeated.

On the assumption that the president, as is his constitutional right and duty, will name someone who will have little possibility of gaining confirmation while he is still in office, it is not inconceivable that, were Hillary Clinton to win the presidency she might consider Obama to fill the open slot if he was interested!

Of course for starters the Democrats would have to reclaim the majority in the Senate—which would require a pick-up of 7 seats (with the Vice President breaking any ties) assuming the two Independents, one being Angus King (Maine) continues to vote with the Democratic caucus and the other, Bernie Sanders (Vermont) is not elected president.  Even then, they would be nine votes short needed for cloture!

Obama lacks judicial experience. However, under Article II of the Constitution, Supreme Court justices do not require it nor do they even have to be lawyers. Earl Warren, William Rehnquist, Lewis Powell, Abe Fortas and Byron White are among those in modern times without prior judicial service. All told there have been 40 Supreme Court justices who had never served a day on the bench.

Obama will be a youngish 55 year old when he leaves the White House and well suited as a constitutional scholar to take up a judicial career. William Howard Taft, the nation’s 27th President, went on to become Chief Justice of the Supreme Court—the only one so far to do so.

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