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 JohnsonSunday shows - Cheney removal, CDC guidance reverberate Ron Johnson calls cyber attacks an 'existential' threat following Colonial Pipeline shutdown All congressional Democrats say they have been vaccinated: CNN MORE (R-Wis.), Rob PortmanRobert (Rob) Jones PortmanBipartisanship has become a partisan weapon Carper urges Biden to nominate ambassadors amid influx at border Fudge violated the Hatch Act, watchdog finds MORE (Ohio), Mark KirkMark Steven KirkDuckworth announces reelection bid Brave new world: Why we need a Senate Human Rights Commission  Senate majority battle snags Biden Cabinet hopefuls MORE (Ill.), Kelly AyotteKelly Ann AyotteSununu seen as top recruit in GOP bid to reclaim Senate Lobbying world Overnight Defense: NATO expanding troops in Iraq 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 TrumpFranklin Graham says Trump comeback would 'be a very tough thing to do' Man suspected in wife's disappearance accused of casting her ballot for Trump Stefanik: Cheney is 'looking backwards' MORE (R) and Sen. Bernie SandersBernie SandersMusk's SpaceX has a competitive advantage over Bezos' Blue Origin New York, New Jersey, California face long odds in scrapping SALT  Warren calls for US to support ceasefire between Israel and Hamas MORE (Vt.).

This presents Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBipartisanship has become a partisan weapon Washington showing signs of normalcy after year of restrictions Former OMB pick Neera Tanden to serve as senior adviser to Biden MORE (R-Ky.) and Senate Judiciary Chairman Chuck GrassleyChuck GrassleyLawmakers bicker over how to go after tax cheats On The Money: Biden says workers can't turn down job and get benefits | Treasury launches state and local aid | Businesses jump into vax push Grassley criticizes Biden's proposal to provide IRS with B 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 CantorVirginia GOP candidates for governor gear up for convention Cantor: 'Level of craziness' in Washington has increased 'on both sides' White House says bills are bipartisan even if GOP doesn't vote for them 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 BoehnerBipartisanship has become a partisan weapon The Memo: Lawmakers on edge after Greene's spat with Ocasio-Cortez What's a party caucus chair worth? 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 LeeOvernight Energy: Colonial Pipeline says it has restored full service | Biden urges people not to panic about gasoline shortages | EPA rescinds Trump-era cost-benefit rule Senate panel advances Biden's deputy Interior pick Hillicon Valley: Global cybersecurity leaders say they feel unprepared for attack | Senate Commerce Committee advances Biden's FTC nominee Lina Khan | Senate panel approves bill that would invest billions in tech 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.