There Will Not Be a Supreme Court Confirmation This Year

When Antonin Scalia died of a massive heart attack, at a Texas resort on Saturday, a hugely polarizing issue was set up. The legendary Conservative Supreme Court justice, known for his tight adherence to the Constitution, is at the opposite end of the political scale compared to any justice that Barack Obama may nominate.

The 79 year old Justice’s death is surely set in motion the most polarising issue not only over Barack Obama’s tenure but also in Supreme Court history.

The replacement of an ultra conservative supreme court justice by a liberal President was never going to be a smooth process.

Certainly even in his lame-duck year, Obama has the constitutional authority to nominate a replacement candidate. Scalia’s death has given Obama the opportunity to change the direction of the Supreme Court. Obama may not actually get the opportunity to do so.

The LBJ Precedent

Antonin Scalia, Supreme Court justice.
Antonin Scalia, Supreme Court justice.

Soon after it was learned that Scalia had passed away, conservatives were working to invoke the “LBJ precedent” that was used in 1968.

What does that mean?

This is a presidential election year and Barack Obama is in the final 10 months of his second term. June 1968 was also a presidential election year, and the sitting president was Lyndon Bains Johnson. At that time, Chief Justice Warren resigned from the Supreme Court, three months after Johnson announced he would not seek a second term. As was his right according to the Constitution, Johnson nominated Associate Justice Abe Fortas to succeed Justice Warren and at the same time, he nominated federal judge Homer Thornberry to replace Fortas.

Nominations are only nominations, they are not appointments.

The Problem

The problem with Johnston’s nomination was that Warren was a conservative and Fortas was one of Johnson’s advisors.

In the media, the late columnists Roland Evans and Robert Novak wrote, “At age 58, Fortas, one of Johnson’s oldest and closest advisers, could be counted on to give the court democratic leadership far into the future, even if Republicans regained the presidency in 1968, as seemed likely.”

This short sentence immediately showed the problem at hand. There was almost no chance that another Democrat would be elected as the next president, and Johnson’s move cause a major political raw in the Senate. Not only Republicans but also conservative Democrats cried foul, because Johnson was trying to set up a more liberal court to oppose the almost certain incoming conservative sweep.

The Forever Filibuster

That was 1968 and we know that the Democrats were swept out and Richard Nixon became the 37th president of the United States. With this scenario expected ahead of them it was argued that the lame-duck president was acting unfairly to make such a crucial lifetime appointment.

The Republicans, led by the late Sen. Robert Griffin (R.-Mich.), And their conservative democrat allies, filibustered the Senate for months. Frustrated over the interaction and waste of time, Fortas eventually withdrew his own nomination.

After Nixon was elected he nominated Warren Burger to be the new chief justice. Burger was duly confirmed.

Back To Today

The current situation is very much like the one that happened in 1968. Obama is likely to nominate a liberal justice to replace the conservative Scalia. The conservative congress is unlikely to allow that to happen.

With Obama being more liberal than Johnson, the stakes are much higher today than they were in 1968.

If Obama was able to handpick a liberal nominee to replace the conservative Scalia, the face of the court would be immediately changed from right to left.

Evenly Split Court

Liberals probably want this to happen, but thinking Americans should understand this: the Supreme Court has been held to a 4-to-4 split in many major cases. That balance would be completely upset with the replacement of a conservative by a liberal.

In this case there is a liberal president and a Conservative Congress it may be expected that this situation may prevail, but imagine for a moment if the roles were reversed, what would Democrats want to do now? Obviously they would want to prevent a conservative President changing the makeup of the Supreme Court in his lame duck year.

With a tied vote at 4-to-4, the deciding vote is Reagan appointee Anthony Kennedy of California. Kennedy has often been the swing vote on key arguments in the court.

Obama already has two of his nominees on the court, Elena Kagan and Sonia Sotomayor.

No Rubberstamp

Right now it seems unlikely that Republicans and moderate Democrats will hand control of the Supreme Court to anyone who would effectively rubberstamp such issues as obama’s controversial executive order on immigration, or the use of union dues for political purposes (Friedrichs v. CTA).

We can probably expect Republicans to invoke the “LBJ precedent” in the Senate after Obama nominates his choice.

Politics is about to get a lot more interesting, or more likely, divisive.

Dwight L. Schwab Jr.
Dwight L. Schwab Jr. is a moderate conservative who looks at all sides of a story, then speaks his mind. He has written more than 3500 national political and foreign affairs columns. His BS in journalism from the University of Oregon, with minors in political science and American history stands him in good stead for his writing.


Dwight has 30-years in the publishing industry, including ABC/Cap Cities and International Thomson. His first book, "Redistribution of Common Sense - Selective Commentaries on the Obama Administration 2009-2014," was published in July, 2014. "The Game Changer - America's Most Stunning Presidential Election in History," was published in April 2017.


Dwight is a native of Portland, Oregon, and now a resident of the San Francisco Bay Area.