It didn’t take long for Supreme Court Justice Antonin Scalia’s death to turn into a political football. It also didn’t take long for Americans to choose sides in the fight over the timing of his replacement. Two major media-based national polls show an even split among registered voters as to whether Barack Obama should choose a replacement in his last few months as president, or should allow the next president to use the voters’ mandate a year from now. First up, the Wall Street Journal reports on the results of their poll with partner NBC:
Americans are just as divided as politicians over whether the Senate should consider President Barack Obama’s forthcoming nominee for the Supreme Court vacancy created by the death of Justice Antonin Scalia.
A new Wall Street Journal/NBC News poll of registered voters found that 43% preferred the Senate to vote this year on Mr. Obama’s choice to fill the unexpected opening, while 42% said the position should remain vacant until 2017, when a new president could nominate a replacement. The remaining 15% had no opinion.
The survey found voters were split deeply along party lines, with 71% of the Democrats favoring Senate consideration of an Obama nominee and 73% of Republicans supporting no action until the next president assumes office.
Voters who identified as independent were almost evenly divided, 43% to 42%, on whether senators should take up a court pick this year.
Right on top of those results comes the CBS News poll, which shows almost exactly the same result:
Forty-seven percent would like to see the next justice appointed by President Obama before the election in November, while nearly as many, 46 percent, would like to see the new justice appointed by whoever is elected in November.
Views are highly partisan: 82 percent of Republicans would like to see the next president appoint Justice Scalia’s replacement, while 77 percent of Democrats want President Obama to make that appointment.
The virtual tie goes all the way down to independents in this survey as well, 46/43 in favor of an immediate nomination. In both polls, around one in five Democrats believe Obama should wait — rather surprising under the circumstances. No president has had the opportunity to reset the Supreme Court’s center since George H. W. Bush nominated Clarence Thomas, the New York Times reported today. Why should Democrats want to pass up that opportunity when they have it in their hands?
But the replacement of Justice Scalia with an Obama pick could alter the court far more than the replacement of Justice Marshall with Justice Thomas. Because of the current composition of the court, the replacement of Justice Scalia with a more liberal justice would alter the center of the court substantially.
Supreme Court scholars often talk about the “median justice,” who can help secure a five-vote majority on controversial cases. Currently, that median justice is Justice Kennedy, whose voting record has been ranked as weakly conservative in recent years — and as weakly liberal last term.
If Justice Scalia is replaced by a justice who votes with the court’s current liberal block, the new median justice will become Stephen Breyer, the most liberal median justice since 1937, when the scholarly rankings begin. If a justice more conservative than Mr. Breyer is confirmed, that new justice is still likely be the most liberal median justice in nearly 50 years.
The answer to the question, most likely, is that many people have a strong resistance to the idea of a president with only a few months left making that kind of a huge impact on the court — with no possibility for accountability on it. Partisan affiliations probably overcome that for most, but there is still a residual reluctance to see that kind of realignment, especially after the same president got slammed in the last mid-term election and his opposition now controls the Senate.
Whatever the reason, blocking the appointment is clearly not an extreme position at all. Republicans in the Senate should look at these results carefully and take heed.