DOVER — Delaware’s senior senator on Wednesday criticized Republican calls for President Barack Obama to abstain from nominating someone to
Thomas R. Carper
fill the vacancy on the Supreme Court.
Sen. Thomas R. Carper, a Democrat, said it would be irresponsible to hold off on nominating a new justice until a new president takes office in January. Justice Antonin Scalia, a conservative and the longest-serving member of the nation’s top court, died last week at age 79.
While politicians and scholars praised him for his service and noted his strict devotion to the Constitution, his death also set off a widespread partisan conflict. Republicans, including those running for president, have insisted it would be improper for the president, now in the final year of his term, to select a replacement.
“The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president,” Senate Majority Leader Mitch McConnell, R-Kentucky, said in a statement after news of Justice Scalia’s death broke.
Democrats are of a vastly different mindset.
Sen. Carper referenced the so-called “Delaware Way,” a viewpoint that cooperation and moderation should govern politics, in discussing his belief that both parties should work to place the best person in the open seat.
“The idea that we would leave a seat in the Delaware Supreme Court vacant for a year or more, we’d never do that,” he said, citing his eight years as governor of the state.
Delaware Sen. Chris Coons, a Democrat who serves on the Judiciary Committee, said in a statement “it is critical” to fill the seat.
Mary Brigid McManamon, a professor at Delaware Law School, said there is no precedent for a spot to remain open for a year.
Presidents in their last year have filled seats on the Supreme Court on several occasions, most recently in the late 1980s. President Ronald Reagan selected Judge Anthony Kennedy of the Court of Appeals for the Ninth Circuit for the top court in 1987, and he was confirmed unanimously.
Eight Supreme Court justices means a tie becomes a strong possibility in some cases. While most decisions are unanimous, major cases — “the ones people watch” — easily could be split along partisan grounds, Ms. McManamon said.
In such cases, the lower court’s ruling holds.
Most of President Obama’s nominees have been “middle of the road,” but some have received objections on partisan grounds, Ms. McManamon said. She noted the president’s previous two Supreme Court picks, Sonia Sotomayor and Elena Kagan, both of whom were successfully confirmed, each received fewer than 10 Republican votes.
With the Republican Party now in control of the Senate, lawmakers could turn approval of any nominee into a daunting process.
Sen. Carper, who has not spoken to any Republican senators, said he is unsure what the majority party will do.
“If we get a great person, it might make some of our Republican friends think twice,” he said.
Ms. McManamon said she expects Republicans ultimately will try to stymie whomever President Obama picks, “unless he nominates Scalia Jr.”
Sen. Carper, who noted he would be willing to support a qualified Republican, said if he were asked to offer advice to the president, he would advise him to select a hard worker who treats people well and is “smart as a whip.”
Several names have been mentioned by national outlets as possible replacements for Justice Scalia, including Sri Srinivasan, a judge on the Court of Appeals for the D.C. Circuit who was nominated to that position by President Obama.
The Washington Post listed several sitting senators who have a background in law, including Delaware’s Sen. Coons. Sen. Coons’ office could not be reached for comment.
Sen. Carper said he does not expect a nominee to be named for several weeks, giving mourners time to grieve and reflect.
The nomination process, featuring intense questioning by the Judiciary Committee and plenty of less formal speculation and public comments, can be challenging, and Sen. Carper referred to it as “terrible.”
If five Republican senators end up backing off the hard-line stance, President Obama’s choice would have the necessary 51 votes, assuming all 44 Democrats and two independents support it.
Republican opposition is a “political ploy” that could backfire if voters remember, Ms. McManamon said. Members of the majority may give their support, especially if the nominee is a moderate, to avoid potential trouble come election season.