'One of the great battles in US Senate history:' Here's what it will take to replace Scalia


Antonin Scalia

AP Photo/Rogelio V. Solis

U.S. Supreme Court Justice Antonin Scalia discusses his background as a law student with fellow Justice Elena Kagan, Monday, Dec. 15, 2014, at the University of Mississippi in Oxford, Miss.

The sudden death of Supreme Court Associate Justice Antonin Scalia leaves an open seat on the bench. Scalia had served 30 years since being appointed in 1986 by Ronald Reagan, and was widely known for his staunch conservative stance.


His death not ony leaves a void, but could change the make up of the court altogether.

"His departure leaves a huge political fight in the offing," said legal analyst Jeffrey Toobin on CNN. "There will be one of the great battles in United States Senate history," Toobin characterized, to replace him.

The nomination process is pretty straightforward, but today's political climate makes it complicated.

Article II of the Constitution gives the president power to appoint Supreme Court justices with the "advice and consent of the Senate." Today's interpretation means that the president will nominate someone, and the candidate will answer questions in a hearing before a Senate Judiciary Committee.


The Senate then gives consent with a vote, and a Supreme Court justice is appointed for life.

The entire confirmation process can be lengthy. Justice Louis Brandeis took four months to be appointed from when he was nominated in late January 1916 to his confirmation by the Senate in June of that year.

This is where President Barack Obama runs into trouble.

Given it's an election year, it's unclear whether the Senate would even consider a nominee under the circumstances, said NBC's Chief legal analyst Pete Williams.

"I would be very surprised, frankly, if a vacancy can be filled in time for the next term to start when it starts in October, but it's such an unexpected thing, such a sudden thing, it's such a shock, and that's the way these things tend to go," Williams said.


Since the Republicans hold the majority in the Senate, Williams cautioned that the Senate is in a position that they will have to weigh carefully going into the election season.

"When something like this happens there is no choice, but it is a very difficult time, and it's certainly going to be something that the Senate is going to have to think about, whether they're going to leave the Supreme Court with just eight Justices and wait until the presidential election to see if a Republican gets elected and will appoint the next nominee or go ahead and fill this vacancy," Williams said.

Senate Majority Leader Mitch McConnell is already advocating to delay appointing a new justice until after the election.

"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," McConnell wrote in a statement.

Under the Constitution, Obama does have the right to put forth a nominee. The biggest unknown will be on what timeline will he or she would be evaluated, if at all.


"[The] question will be whether President Obama's nominee ... will get a vote at all in the remaining months of his presidency," Toobin said.