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Parsing The Supreme Court Confirmation Process


We're going to turn now to the inevitable political implications of Scalia's passing because there are many. We are, of course, in the middle of an increasingly contentious presidential election. Last night, Republican Senate Majority Leader Mitch McConnell came out and said the Senate should wait until a new president is elected before confirming a new Supreme Court justice. In his remarks last night, President Obama seemed to be acknowledging he knows he's going to face a fight.


PRESIDENT BARACK OBAMA: I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They're bigger than any one party. They are about our democracy.

MARTIN: With us to talk about the politics in the process is NPR justice correspondent Carrie Johnson. Carrie, we heard the president is going to move with a nomination even though congressional Republicans say they will block it. So what is that going to look like?

CARRIE JOHNSON, BYLINE: Rachel, we're in uncharted waters here, but get used to this phrase coming from Capitol Hill and maybe even inside the White House in the weeks to come; running out the clock. Or, in the immortal words of Donald J. Trump in last night's Republican debate, delay, delay, delay. Now you heard Senator McConnell say no choice should be made, no selection should be made until there's a new president in office. And the chairman of the Senate Judiciary Committee, Republican Charles Grassley, who would shepherd any nominee, has said it would be very rare to nominate and confirm a nominee in an election year. Although if you go back in history, there are some examples of that happening. Justice Anthony Kennedy, nominated by President Reagan in 1987 and confirmed overwhelmingly by the Senate in 1988, which was an election year, Rachel.

MARTIN: So you're saying it could happen, but odds are slim in these political times. And obviously, the stakes are as high as they get - right? - because the court is so currently divided.

JOHNSON: Couldn't be higher. The court is closely divided. And now, with the sudden death of Justice Scalia, if the court ties 4-4, the ruling by the lower court stands. Here are just a few of the issues on the high court's docket this term - access to abortions, voting rights, redistricting, President Obama's initiatives on immigration and the environment, and of course affirmative action and higher education. Now, Rachel, Republicans could be making a gamble here because over the course of the last seven years, President Obama has been able to turn the majority of the lower appeals courts to be dominated by justices appointed by Democrats. So nine of those 13 appeals courts are now controlled by Democratic nominees. If the conservatives on Capitol Hill do not approve Obama's nomination this year, lower court rulings would stand in those districts.

MARTIN: NPR justice correspondent Carrie Johnson, I have a feeling we're going to be talking with you about this in months to come. Carrie, thanks so much for helping break it down for us.

JOHNSON: You're welcome. Transcript provided by NPR, Copyright NPR.