by Rachel Lamb, senior editor

On February 13, 2016, Supreme Court Justice Antonin Scalia unexpectedly passed away in Texas.  An immediate reaction followed: people offered their condolences and remembered Scalia as one of the most influential Supreme Court justices of his time, whether they agreed with his conservative opinions or not.  

Yet, not a second after his passing, the politics swiftly started.

Before Scalia’s unexpected death, the Supreme Court was (unofficially) divided 5-4, with 5 conservative judges and 4 liberal judges.  Now with 8 justices, the decision could end in a tie, meaning the decision made by a lower court will stand.  So why not nominate a 9th justice and be on our merry way?

Well… politics.

The president, in this case, Democratic President Obama, has the job of nominating a Supreme Court justice. Article 2, Section 2 of the U.S. Constitution states:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Our current Senate is Republican controlled.  With a divided Congress and President, their relationship is only getting more tense.  And with extremely controversial issues coming before the Supreme Court this year (including abortion and affirmative action),  partisan divisions have swiftly appeared.  Mitch McConnell, the Senate majority leader, has stated that the Senate will not consider any appointments made by Obama.  Republicans have cited the very unofficial and unspoken rule — Thurmond’s rule — which says that they would not nominate in a President’s last year of office, and we should instead wait until a new president is elected. It’s important to note, though, that Republican president Ronald Reagan nominated a Supreme Court Justice (Anthony Kennedy) in his last year in office (with a Democratically-controlled Senate).

Obama has said that he will nominate a new justice in due time. McConnell says that America should have a choice in choosing the next justice through its decision in the next presidential election. But as Senator Elizabeth Warren has fired back, haven’t the American people spoken when they elected President Obama (overwhelmingly) to the presidency twice?