Game of Thrones: Who will nominate Scalia’s replacement?
Game of Thrones is a wildly popular US fantasy drama which has been broadcast into homes around the world since 2011. It has just been renewed for its sixth season beginning April 2016. It chronicles a fictionalized version of the Western European Middle Ages’ struggles between families jockeying for power, prestige, and ultimately, the monarchy.
Its stock-in-trade are war, conflict, violence, and sex as played out in this ultimate power game. Now, the people of the US have their own real life Game of Thrones that begins with the announcement of the death Antonin Scalia.
“Liberals” on the Court now can only look back longingly on the days in which they ruled. Those were the days when Earl Warren, appointed by Republican President Eisenhower, ended legal US apartheid in landmark civil rights decisions like Brown v. Board of Education and Loving v. Virginia. The Warren Court protected civil liberties enshrined in the Bill of Rights and strengthened secularism and federalism.
But, during subsequent years, Republican Presidents eroded the liberal leanings of the Supreme Court by appointing arch conservatives.
Current Court Chief Justice John Roberts was nominated by President George W. Bush, as was Justice Samuel Alito; Justices Anthony Kennedy and Antonin Scalia were appointed by President Reagan; Clarence Thomas was appointed by President George Herbert Walker Bush. The “liberal” wing of the Court is solidly represented by the appointments of President Clinton (Ruth Bader Ginsburg and Stephen Breyer) and President Obama (Sonia Sotomayor and Elena Kagan). Scalia and Thomas could always be counted on to assume the arch conservative positions; Justices Alito and Roberts generally clung to the conservative pole and Kennedy was viewed by some as a sometimes “swing” vote for the liberals. All of that falls by the wayside now as the US Supreme Court is split four - four. The future of the US Supreme Court, conservative or liberal, now hangs in the balance. Thus begins this story-line in the real life Game of Thrones.
The two most important questions under discussion now involve when the nomination for Scalia’s replacement will be made and by whom. The US is currently deeply in the throes of a Presidential election; naturally, Democrats want President Obama to announce his selection now, but the Republican Senate has vowed to block whoever might get the nod from Obama. Some Democrats have suggested candidates that would make it very difficult for Republicans to turn down, like, for instance, a sitting Republican governor. All eyes are on President Obama as this game has only just begun. The tie-breaking next Supreme Court Justice might just have to wait until a new President is sworn in to get the call. This constitutes sub-plot number one in our Game of Thrones. It is this sub-plot that has consumed much attention in the press as Presidential candidates discuss the tremendous loss to the country of Justice Scalia and weigh in on whether or not President Obama should wade into the Scalia-replacement waters.
Sub-plot number two involves how the Supreme Court nomination can augment lagging Presidential prospects for the Democratic and Republican candidates. For example, one author, Rob Hager, has suggested that Bernie Sanders could shore up his lagging “people of color” credentials by preparing a short-list of possible nominees of black women – including me! This same author also suggests that Senator Sanders could also announce a process for all of his judicial appointments so that especially voters of color, could have confidence that their interests will be given adequate attention by President Sanders in the area of administration of justice.
Now, while all of this overt politicking is going on at the media level, another sub-plot, number two, is developing around just exactly how the suggested nominee should look and think. There is a strong push, for example, for the naming of a black woman to the Bench to offset the cynical appointment of Justice Clarence Thomas who uses every opportunity to votes against bolstering civil rights every chance he gets. In fact, I personally had a case go to the Supreme Court and on the day that the Spotted Owl was protected by the nation’s highest Court, Black voters, victimized by dwindling popular support for enforcement of the Voting Rights Act, saw their voting rights scattered to the four winds, with Clarence Thomas voting against enforcement of that historic achievement of Dr. Martin Luther King, Jr.
The Supreme Court also has unfinished business whose outcome is certainly now more uncertain. Some companies have already adjusted to the new reality, like Dow, settling disputes out of Court because a sure vote in their favor is now gone. Sub-plot number three involves the 69 or so cases, according to the American Bar Association, scheduled for the 2015-2016 term, now affected by the vacancy caused by Scalia’s death. The five cases to watch selected by the Constitution Center involve voting rights, labor unions, affirmative action, abortion, and Obamacare.
The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.