The University of Chicago Law Review Online Symposium on “Presidential Politics and the 113th Justice” features an article by Professor Lisa McElroy.
The article, “The West Wing, the Senate and ‘The Supremes’ Redux,” notes striking similarities between the current U.S. Supreme Court vacancy and a scenario from “The West Wing” television series that NBC aired in 2004.
In the fictional White House, a Democratic president unexpectedly had an opportunity to nominate a liberal to the Supreme Court, only to face intense political pushback from a Republican-controlled Senate.
McElroy’s article tallies the extraordinarily high stakes in the vacancy that resulted from Justice Antonin Scalia’s death in February, for which Senate Republicans have refused to hold hearings on President Obama’s nominee, Merrick Garland.
“A year with only eight justices on the Court removes an important voice from deliberations, from oral arguments, from seemingly casual but perhaps important hallway or lunchtime conversations. A year with no justice in that seat sets a precedent for leaving seats open that could make future nominations even more difficult,” McElroy said. “A year with no appointment puts us into a constitutional crisis, in which both sides argue over power versus duty versus rights.”
Both the nomination of a moderate and the GOP leadership’s objection exposed the president and the Senate’s motives, McElroy said.
“It’s all politics, plain and simple,” she said, adding that viewing the president’s appointment of a Supreme Court justice “as a right and not a privilege” has the potential to harden political opposition or lead to a solution. “it might redirect the conversation into one in which each party accepts that part of the presidency is the right to put someone in that seat who might be there for the next forty years.”
The symposium also features articles by scholars including University of California, Irvine School of Law Dean Erwin Chemerinsky, Cornell Law School Professor Michael Dorf and University of Pennsylvania Law School Professor Kermit Roosevelt.