In practical terms, the death of Supreme Court justice Antonin Scalia will not affect the outcomes of cases, except for those that were going to be decided 5-4, with him in the majority. Now those cases will result in a 4-4 tie which means that the lower court opinion will stand. The opinions in those cases already heard but not decided and that justice Scalia was assigned to write the opinion will now have to be re-assigned.
The shock created by the news of the sudden death of Scalia did not last long before people started staking out positions on his replacement. Within a few hours, the Republican party leadership was vowing to not let president Obama fill the seat, saying that the next president should do so. This is absurd, since that means that the vacancy will last until well into the next year, and the court will be short one justice not only for the rest of this term but also for the entire 2016-2017 term.
This could also be a risky strategy for Republicans. At this point, they could agree to discuss with president Obama and see if they could come up with someone who is agreeable to both sides. There is speculation that Sri Srinivasan from the District of Columbia Court of Appeals may be a good compromise choice.
Srinivasan, 48, was born in the northern Indian city of Chandigarh while his father belonged to the southern Indian state of Tamil Nadu. His family migrated to Kansas in the 1960s, where he grew up. He went on to earn degrees from Stanford in college, law school, and business school, the New Yorker said in a report in 2013, citing Srinivasan as “the Obama Administration’s principal deputy solicitor general.”
Srinivasan was also a law clerk to Supreme Court Justice Sandra Day O’Connor, who was a 1981 appointee by Republican President Ronald Reagan and is now retired. After his clerkships, Srinivasan served as a corporate litigator at O’Melveny & Myers and then worked in the office of the U.S. Solicitor General from 2002 to 2007.
Srinivasan, who has served on the U.S. Court of Appeals for the District of Columbia Circuit since May 2013, was confirmed with a 97-0 vote by the Senate three years ago. His appointment to the District Court of Appeals was a part of an effort to sway the court from its conservative penchant, the Washington Post reported, adding that this was the main reason why the Republicans had fought his nomination.
While this will increase the diversity of the court, this still seems a long-shot in the current climate where the Republican base views any compromise as a sell-out. But it may be their best option because if Hillary Clinton or Bernie Sanders becomes president, there is also a chance that Democratic candidates for the senate get elected on their coat tails, giving them a majority in the chamber. Even if it is not a filibuster proof 60 seats, the Democrats can argue that Republican obstructionism requires the use of the ‘nuclear option’ of a simple majority and thus enable them to put an even more liberal voice on the court. And if Donald Trump becomes president, who knows what the hell he will do.
It is unlikely that Obama will be as crassly political as president George H. W. Bush, who used the retirement of Thurgood Marshall, a liberal giant, to nominate an extreme young right wing conservative African American in Clarence Thomas and dare the Democrats to vote against him and risk alienating a core group of supporters. It was a highly cynical move by Bush but it worked. If Obama thinks along those lines, he could nominate someone from a demographic group that the Republicans cannot afford to alienate, except that it is hard to find one that they have not already done so. Women? Check. African American? Check. Hispanic? Check. Immigrants? Check.
The fact that Srinivasan is young may work against him since Republicans may only agree to someone who is quite old and thus will not serve too long. The Asian vote is negligible so obstructing Srinivasan will not be as damaging except in so far as it will reinforce the image of the Republicans being an anti-immigrant, xenophobic party, which may actually appeal to their base. The fact that he was born outside the US to non-American parents may be used against him as not being a ‘true American’. I don’t know what Srinivasan’s religion is but his name suggests that his family at least comes from the Hindu tradition. This may also work against him since the nativists want the Supreme Court to interpret the US Constitution as a Christian-based document, though they are willing to make a pretense of tolerating a Judeo-Christian interpretation as long as it is not too Judeo.