The Feb. 13 death of Justice Antonin Scalia started a turmoil that not only shakes the very top of the U.S. judicial system but also the lower courts. More than 30 nominees to district and appeals courts may wind up as bargaining chips for whomever President Barack Obama nominates to replace Scalia.
Republican leaders, however, remain firm that no justice will be confirmed until after the general election and a new president is voted into office in November.
Is that an insurmountable obstacle for the White House? Judicial and constitutional experts from George Mason University’s School of Law are available to answer, or at least speculate on, fast-moving developments.
“To get a new justice confirmed before the election, Obama would probably have to nominate a conservative Republican—which is, for understandable reasons, highly unlikely,” said the School of Law’s Ilya Somin.
“The nominee won't be confirmed unless the Republicans lose the presidential election in November,” surmised constitutional law professor David Bernstein.
Bernstein adds: "I would say that whoever is chosen won't be confirmed by the election, and then if the Democrats win, the president might withdraw the nomination to give (Hillary) Clinton a chance to appoint her choice. This means that it may be difficult for the president to find someone ‘willing' to accept the nomination, as it's unlikely to result in confirmation."
As for who might actually be nominated, Somin said, “I tend to agree with the conventional wisdom that it is likely to be Sri Srinivasan or Paul Watford, though other options are certainly possible.”
Ilya Somin can be reached at 703-993-8069 or isomin@gmu.edu.
David Bernstein can be reached at 703-993-8089 or on Twitter at @ProfDBernstein.
Media representatives may contact Buzz McClain at bmcclai2@gmu.edu.
About George Mason
George Mason University is Virginia’s largest public research university. Located near Washington, D.C., Mason enrolls more than 33,000 students from 130 countries and all 50 states. Mason has grown rapidly over the past half-century and is recognized for its innovation and entrepreneurship, remarkable diversity and commitment to accessibility.