Scalia's empty chair and the Senate's path forward
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The late Supreme Court Justice Antonin Scalia established himself and will long be remembered as a towering hero of the conservative movement. The coming months will likely bring more political wrangling and high-minded rhetoric over the nomination of his successor.

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Two key questions stand out. First, can the nomination and confirmation occur before the November presidential and congressional elections? Second, what type of nominee would clear the constitutional hurdle of Senate confirmation?

Scalia leaves an impressive legacy as a tireless and unceasing champion of democracy and the constitutional text. On a personal level, of course, he also leaves an impressive family legacy: his wife Maureen and their nine children and over 30 grandchildren.

To be sure, his relentlessly logical approach and doctrinal consistency dramatically influenced the court, even his liberal colleagues, to look to the text and the plain meaning of provisions under review. His textualist approach steered the court away from judicially crafted multi-part tests that seemed more like statutes than judicial decisions. He imposed more analytical rigor in his approach to legal precedents and outcomes. He all but ended the judicial game of justifying outcomes by sleuthing for obscure snippets of language buried somewhere in the many hundreds of pages of "legislative history." Congress, he said, "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes."

As court watchers have recognized, Scalia was also one of the best writers in the history of the Supreme Court.

On the issue of his successor, history may prove instructive. The most recent occasions when a president nominated and the Senate confirmed a Supreme Court selection in a presidential election year were 1956, 1940 and 1932. In two of these cases, a Republican president named Democrats to the high court: President Eisenhower selected William Brennan and President Hoover selected Benjamin Cardozo.

President Obama could follow this precedent and name a Republican to fill Scalia's seat. Rumor had it that Obama was considering Brian Sandoval, the Republican governor of Nevada. That type of nominee would put the pressure back on Senate Republicans to explain to American voters in their home states why a Republican nominee would be unacceptable. But wary conservatives have been burned too many times by the likes of Justices David Souter and Anthony Kennedy, or even Chief Justice John Roberts.

A Republican nominee would present a special challenge for those Republican senators up for reelection in moderate states, such as Sens. Ron JohnsonRonald (Ron) Harold JohnsonKavanaugh, accuser to testify publicly on Monday Kavanaugh furor intensifies as calls for new testimony grow House panel advances DHS cyber vulnerabilities bills MORE (R-Wis.), Rob PortmanRobert (Rob) Jones PortmanGraham calls handling of Kavanaugh allegations 'a drive-by shooting' Overnight Health Care: Senators target surprise medical bills | Group looks to allow Medicaid funds for substance abuse programs | FDA launches anti-vaping campaign for teens Bipartisan group wants to lift Medicaid restriction on substance abuse treatment MORE (Ohio), Mark KirkMark Steven KirkThis week: Trump heads to Capitol Hill Trump attending Senate GOP lunch Tuesday High stakes as Trump heads to Hill MORE (Ill.), Kelly AyotteKelly Ann AyotteGOP mulls having outside counsel question Kavanaugh, Ford Pallbearers, speakers announced for McCain's DC memorial service and Capitol ceremony Tributes pour in for John McCain MORE (N.H.) and Pat Toomey (Pa.).

The confirmation process changed dramatically over the last few decades, as critics of the Warren Court focused attention on the Supreme Court's failure to act as an umpire calling balls and strikes as it became a super-legislature of unaccountable life-tenured judges who substitute their own policy preferences for duly enacted laws — in the words of the late Professor Herbert Wechsler, a "naked power organ."

Ultimately, we see this frustration on both sides of the political aisle in the presidential nomination contest. We see a great divide between voters' wishes and Washington's failure to deliver the relief they seek. That divide is one reason for the rise of Donald TrumpDonald John TrumpHannity urges Trump not to fire 'anybody' after Rosenstein report Ben Carson appears to tie allegation against Kavanaugh to socialist plot Five takeaways from Cruz, O'Rourke's fiery first debate MORE (R) and Sen. Bernie SandersBernard (Bernie) SandersFive takeaways from Cruz, O'Rourke's fiery first debate Ben & Jerry’s co-founders announce effort to help 7 Dem House challengers Dems look to Gillum, Abrams for pathway to victory in tough states MORE (Vt.).

This presents Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGOP, Kavanaugh accuser struggle to reach deal GOP making counteroffer to Kavanaugh accuser The Hill's 12:30 Report — Trump questions Kavanaugh accuser's account | Accuser may testify Thursday | Midterm blame game begins MORE (R-Ky.) and Senate Judiciary Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyGrassley extends deadline for Kavanaugh accuser to decide on testifying Ben Carson appears to tie allegation against Kavanaugh to socialist plot Kavanaugh accuser seeks additional day to decide on testimony MORE (R-Iowa) the perfect opportunity to redeem Washington Republicans with frustrated voters of all persuasions.

The people gave Republicans a majority in the House of Representatives in 2010. They voted House Majority Leader Eric CantorEric Ivan CantorFake political signs target Democrat in Virginia Hillicon Valley: GOP leader wants Twitter CEO to testify on bias claims | Sinclair beefs up lobbying during merger fight | Facebook users experience brief outage | South Korea eyes new taxes on tech Sinclair hired GOP lobbyists after FCC cracked down on proposed Tribune merger MORE (R-Va.) out of office in a Republican primary. They gave Republicans a Senate majority in 2014. They essentially forced Speaker House John BoehnerJohn Andrew BoehnerBlue wave poses governing risks for Dems Nancy Pelosi: Will she remain the ‘Face of the Franchise’? Jordan hits campaign trail amid bid for Speaker MORE (R-Ohio) to resign last fall.

Voters sent Republicans to Washington to use their rare and historic control of both Houses of Congress to stop President Obama. It is high time now, in the fourth quarter of Obama's presidency, to use this empowerment on the most important issue of our time. McConnell and Grassley deserve credit for recognizing the importance of this moment and the charge they have from voters.

President Obama could choose to follow the examples of Presidents Eisenhower and Hoover by crossing party lines. He could nominate a solid defender of the rule of law and the Constitution, such as Sen. Mike LeeMichael (Mike) Shumway LeeReexamining presidential power over national monuments Utah group complains Mia Love should face criminal penalties for improper fundraising Senate approves 4B spending bill MORE (R-Utah). If so, the Senate would have an easy time confirming Obama's selection. If not, the country will be better off leaving Justice Scalia's chair empty until a worthy successor can be found.

Trotter is a political analyst and attorney. Her views are her own.