The replacement of the ultra-conservative U.S. Supreme Court judge is a subject of debate. The president wants to appoint the successor; the Republicans want to leave the choice to the future tenant of the White House.

The time of tribute and harmony which usually follows the death of a national figure did not last longer than a few hours. This time, there was neither truce nor decency. The death on Saturday of Antonin Scalia, the ultra-conservative Supreme Court justice, and the debate on his succession have immediately aroused divisions that undermine the American political class.

'Originalist'

It must be said that the replacement of the 79-year-old magistrate is a considerable issue. The orientation of his successor, conservative or progressive, will undoubtedly tip the ideological balance of the highest U.S. court, which is responsible for regularly deciding crucial issues (abortion, death penalty, immigration).

Until now, the Supreme Court, composed of nine magistrates, would lean in favor of the conservatives (five judges against four), although one of the judges considered conservative (Anthony Kennedy) has sometimes voted in favor of the progressives. Thus, in June, the Court legalized gay marriage across the U.S. by five votes against four. This was to the great displeasure of Antonin Scalia, a traditionalist Catholic, father of nine and a supporter of the mass in Latin. Describing himself as an “originalist,” Scalia would defend a literal reading of the Constitution, continuously insisting that it was not a “living” text subjected to interpretation. After the decision on same-sex marriage he violently lashed out at his colleagues, accusing them of abusing their power by meddling in ethical questions unrelated to the law. He wrote that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

In accordance with the Constitution, it is the president who appoints the nine justices of the Supreme Court for life and it is up to the Senate to confirm the nominations. A few hours after the announcement of Justice Scalia’s death in his sleep in Texas, Obama promised to designate a successor: “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.” Anticipating the opposition of the Senate, controlled by Republicans, Barack Obama warned: “These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They’re about our democracy.”

'Nightmare for the Republic'

The Republicans retort that a president at the end of his term, even if it is his right, does not have the legitimacy to make such a crucial nomination. Mitch McConnell, Senate Republican leader, did not hide his intention to block the process. “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,” he insisted, hoping that a Republican will succeed Obama.

Scalia’s death “promises to be a nightmare for the republic,” said Ross Douthat, conservative columnist for The New York Times. He added, “Scalia’s death promises a war like none other between here and November, and an extra layer of insanity in a campaign already defined by radicals and demagogues.”

From Saturday evening, the candidates to the White House took hold of the matter. Donald Trump has called on the Senate to “delay, delay, delay” the nomination of the next judge. Hillary Clinton has accused the Republicans of “dishonoring the Constitution.” As for Ted Cruz, the senator from Texas, champion of the religious right, he has called on the Senate to “stand strong and say 'We’re not going to give up the U.S. Supreme Court for a generation by allowing Barack Obama to make one more liberal appointee.'"

Obama and the Democrats clearly have the upper hand in this power struggle. If the Senate blocks his candidate, the president will hasten to denounce the obstructionism of Republicans ready to paralyze the system for partisan interests. To discredit his opponents, he could nominate a moderate progressive candidate who, in a different context, would have been considered consensual. Among the names mentioned, that of Sri Srinivasan comes back insistently. Appointed in 2013 by Barack Obama for the U.S. Court of Appeals for the District of Columbia Circuit, the judge of Indian origin was unanimously confirmed by the Senate, by 97 votes against zero. Given the context, the seat of Justice Scalia should, despite everything, remain vacant. As a consequence, the Supreme Court, which must rule in June on issues linked to abortion and to immigration measures of the president, could end up paralyzed.

The death of Judge Scalia arouses interest in senatorial elections to be held on Nov. 8, the same day as the presidential election. Thirty-four seats out of 100 are put back into play, including 24 held by Republicans. To many observers, the two parties will use the battle over the Supreme Court to electrify and mobilize their electorate. On Sunday on NBC, Ted Cruz did not say otherwise: “We should make the 2016 election a referendum on the Supreme Court.”