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Battle On To Fill Supreme Court Vacancy After Death Of Justice Antonin Scalia


We begin our program today with the battle already under way to fill the Supreme Court vacancy left by the death yesterday of Justice Antonin Scalia. President Obama says he plans to fulfill his constitutional duties and nominate a successor in due time. He has nearly a year left in office. Senate Majority Leader Mitch McConnell signaled Republicans would block any Obama nomination. He said the vacancy should not be filled until the next president takes office. The American people, McConnell said, should have a voice in the selection. Joining us to talk about all this are NPR senior editor and correspondent Ron Elving and NPR's justice correspondent, Carrie Johnson. I'm glad to have you both with us. And Ron, I'm going to start with you. This disagreement over how quickly to proceed, is this mainly a partisan dispute - if you're a Republican, you hope a Republican will win the presidency and get to make the choice, if you're a Democrat, you want this president to choose - or is there actually some philosophical debate which is playing out in a partisan way?

RON ELVING, BYLINE: It is certainly an ideological debate that is not something that is petty partisan. It's not something that is just a matter of which team do you play on. We've seen a great deal of bipartisanship over the years with respect to some other Supreme Court nominees, and we've seen a great deal of battle between the two parties in other instances. For example, in 1986, Antonin Scalia himself was confirmed unanimously by the Republicans and Democrats together in the Senate. But just a year later, after the Democrats had taken majority control of the Senate, they turned very much against another Ronald Reagan nominee, Judge Robert Bork, who was rejected by the Senate with 58 negative votes.

MARTIN: What are Republicans on Capitol Hill saying beyond Mitch McConnell?

ELVING: Well, we also heard Ted Cruz, who of course is running for president and would very much like to choose the next president of the United States himself. He said immediately that Obama should not even advance a name to the Senate, and Marco Rubio said very similar things. He's another senator who would very much like to choose the next Supreme Court justice. And we are also hearing from Chairman Grassley, who is actually the man in charge of the process on the Judiciary Committee. And Charles Grassley has said that he doesn't really see any problem at all with waiting for the next president to step up. And in fact, his office tried to represent that it was really quite rare for a president to even attempt to fill such a vacancy in an election year.

MARTIN: Carrie Johnson, there are always names of possible nominees circulating at a time like this. I mean, you have to assume that the White House has some kind of list in mind given that there is always the possibility that the president might be called upon to make a nomination throughout his term. Do you think that the president will try to find a judge who might actually be able to survive confirmation, or would he be more likely to choose someone to make some sort of a point? Any sense of their thinking?

CARRIE JOHNSON, BYLINE: Let's look at the record for the last seven years or so, right? President Obama has said he prizes diversity. He's put a lot of women and minorities on the bench, more than ever before. He also prizes empathy and diversity of experience. Michel, for the most part, he has not gone way off and made ideological picks for appeals courts or lower court judges. I don't expect him to do that this time given the sensitivity and the political outlook here. But we can say that there are a few people likely to be under consideration now. One is Sri Srinivasan. He's an Asian-American who was appointed with no opposition back in 2013 to a senior post on the D.C. Circuit Court of Appeals. He's worked for Republicans and Democrats, done major litigation in the private sector, and is very well-liked across the board. There's also Paul Watford. Paul Watford was confirmed to the 9th Circuit about four years ago out in the California area. He clerked for a conservative, maybe a libertarian judge, even Alex Kozinski, who's pretty famous. He's African-American. And the president has, of course, got confirmed two women justices. But if he picks Paul Watford, we would have an African-American pick.

MARTIN: Carrie, can you talk about the state of the federal bench now? There was a time when Republican nominees or people who had been nominated by Republican presidents dominated the federal bench. Is that still true?

JOHNSON: So President Obama's White House got off to a very slow start in nominating and confirming judges to these lower courts. But now seven years in, the majority of circuit courts around the country - nine out of 13 - are dominated by Democratic-appointed judges.

MARTIN: And why is that important?

JOHNSON: It's important because eventually, if some of these disputes make their way up to the Supreme Court, which is now consisting of eight members, and they tie 4-4, the ruling by that lower appeals court would stand. And so since those lower courts are, generally speaking, dominated by Democratic-appointed judges, Republicans could really be taking a gamble here by refusing to act on President Obama's nominee to fill Justice Scalia's vacancy.

MARTIN: Interesting. So before we let you go, Ron, Justice Scalia's legacy came up at last night's Republican debate in South Carolina, the candidates praising him as a true conservative. Was there any other headline for you from that debate? It was really raucous, I mean, to say the least. Any other headline from that that you want to flag for us?

ELVING: The other headline would be that they did not agree on much of anything else other than that Barack Obama should stop being president and he should stop right now by not even advancing a name to the Senate floor, a replacement for Antonin Scalia. There were extraordinary disagreements, particularly Donald Trump suggesting that the terrorist attacks of 9/11 on New York and Washington, D.C. could be in some sense or another held against George W. Bush because he hadn't done enough to prevent them, that his CIA had had a lot of information. He also said that George W. Bush had gone into Iraq to get after those weapons of mass destruction, and he went a step beyond saying there were no such weapons to saying that the Bush administration was aware there were no such weapons. Those are pretty serious allegations to be made within the context of a Republican primary. And of course, George W. Bush's brother, Jeb, immediately objected to that and did a pretty strong job of defending himself and his family against the attacks of Donald Trump. But, you know, like a lot of these other debates, in the end, what you see is mostly the mud that was thrown that got stuck on the wall.

MARTIN: That's NPR's Ron Elving. Ron, thank you.

ELVING: Thank you, Michel.

MARTIN: And Carrie Johnson, also with us. Carrie, thank you as well.

JOHNSON: It was a pleasure. Transcript provided by NPR, Copyright NPR.

Ron Elving is Senior Editor and Correspondent on the Washington Desk for NPR News, where he is frequently heard as a news analyst and writes regularly for NPR.org.
Carrie Johnson is a justice correspondent for the Washington Desk.
Michel Martin is the weekend host of All Things Considered,where she draws on her deep reporting and interviewing experience to dig in to the week's news. Outside the studio, she has also hosted "Michel Martin: Going There," an ambitious live event series in collaboration with Member Stations.
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