Future of Supreme Court to be decided in Nov.

Posted at 5:49 PM, Feb 13, 2016
and last updated 2016-02-14 08:11:23-05

The American justice system was set up as the one branch of government that was supposed to withstand political forces. But with Saturday's death of Supreme Court Justice Antonin Scalia, the control of the Supreme Court is about to become a huge political issue.

Supreme Court nominations are decided after the president nominates someone, and the Senate votes to confirm that nomination. With a Republican-held U.S. Senate, it is almost a certainty that the Senate would not consider anyone President Barack Obama would nominate for the post. 

And a number of ranking GOP members have already said Obama should not expect he will be able to name Scalia's replacement, despite having nearly a full year left on his term.

GOP Senate Leader McConnell was among a group of U.S. Senators to say that a vote to replace Scalia should come after the November election. Presidential candidate Ted Cruz agreed with his caucus leader.

"Justice Scalia was an American hero," Cruz, a Senator from Texas, said. "We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement."

That would leave the nation's top court with four justices appointed by Democrats, and four justices appointed by Republicans. 

But Democratic candidate Hillary Clinton fired back at her former Senate colleagues. 

"The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia's seat to remain vacant dishonor our constitution," Clinton said in a statement. "The Senate has a constitutional responsibility here that it cannon abdicate partisan political reasons."

Obama said Saturday evening he intends to make a nomination, and that the Senate will have time to vet his nominee.

"I plan to fulfill my constitutional responsibility to nominate a successor in due time. There will be plenty of time for me to do so and the Senate the fulfill its responsibility," Obama said. 

The last time a president nominated someone for a vacancy during a presidential election year was in 1968. Both of Lyndon B. Johnson's nominees were not confirmed. The last successful nomination of a Supreme Court justice during a presidential election was Frank Murphy in 1940. He was nominated by Franklin D. Roosevelt.

Justice Anthony Kennedy was confirmed during a presidential election year in 1988, but his nomination came late in 1987.

While recent decisions like the legalization of gay marriage likely would not be affected by replacing Scalia - he dissented on the gay marriage decision - several other justices could step down from the bench at the start of a new administration. This could mean conservative priorities such as repealing the Affordable Care Act, overturning Roe v Wade and allowing states to decide to allow gay marriages could take place with a Republican-backed set of nominees. 

For now, the Supreme Court will sit with four liberal and four conservative justices. Any 4 to 4 decision will mean the law is left in place, but a constitutional precedent is not to be set meaning a similar case could work its way back to the top court. 

Justin Boggs is a writer for the E.W. Scripps National Desk. Follow him on Twitter @jjboggs.