Justice Scalia’s replacement

CREDO action
President Obama's Supreme Court nominee must get an up-or-down vote

The petition to Senate Republican leadership reads:
"Your partisan threats to block President Obama from replacing Supreme Court Justice Antonin Scalia would be an unprecedented and unconstitutional act of sabotage to our judicial system. It is your duty to hold fair hearings and an up-or-down vote on President Obama's nominee."

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Dear 5849376,


Within hours of news breaking that Supreme Court Justice Antonin Scalia had died, Senate Republicans were already promising to block confirmation of his replacement until the next president takes office.

Senate Majority Leader Mitch McConnell issued an official statement declaring, "this vacancy should not be filled until we have a new President."1 Sen. Charles Grassley, chair of the Judiciary Committee, agreed that a "new president" should "select the next Supreme Court justice."2 Presidential candidates Sens. Ted Cruz and Marco Rubio both made statements suggesting that "the next president" should name Scalia's replacement.3

President Obama has almost a year left in office. As president — twice elected by the American people — he has the constitutional power under Article II to nominate a new Supreme Court justice with the advice and consent of the Senate. It is unprecedented that senators from the opposing party would preemptively challenge that power and promise to undermine it.

In the last year of President Ronald Reagan's second term, the Democratic-controlled Senate – including current Republican Senate Majority Leader Mitch McConnell – unanimously confirmed Justice Anthony Kennedy with a 97-0 vote.4 In the last year of President Obama's term, partisan obstruction from Senate Republicans will be an anti-democratic power grab that would violate their duty to the nation. We have to show that the political cost of obstruction will be too high.

Tell Senate Republican leadership: You must hold fair hearings and a timely up or down vote for President Obama's nominee for Justice Scalia's replacement on the Supreme Court. Click here to sign the petition.

If there's no replacement for Justice Scalia until the inauguration of the next president, the highest court in the land is effectively hindered for two terms. In the likely event of a 4-4 tie, the lower court's decision is upheld but is not considered binding precedent.5 That means that countless important cases – and lives – will remain in limbo if Senate Republicans succeed in their attempt to undermine the Constitution.

Here are just some of the issues before the Court this term:

  • Whether President Obama has the authority to provide a path to legal status and work permits for people who entered the United States as children, and for the undocumented parents of U.S. citizens.6
  • Whether President Obama's attempts to curb carbon emissions violate the Clean Air Act.7
  • Whether states can pass legislation under the guise of "protecting women's health" that actually takes away women's access to abortion.8
  • Whether institutions have the right to use religion as an excuse to deny women birth-control as mandated in the Affordable Care Act.9
  • A case that could decide the future of public sector unions.10

The next Supreme Court justice may also have the opportunity to overturn the disastrous Citizens United decision, which poses an existential threat to our democracy.

Senate Republicans are already making it clear that they are willing to subvert the Constitution in order to have a chance to appoint a justice who opposes women's health care, sides with corporations over workers, will allow big money to continue to hijack our elections, and more. We can't wait while Republicans try to spin a false narrative that their malfeasance is in defense of the will of voters. We need to put as much pressure as possible on Senate leadership now and force them to back down.

Tell Senate Republican leadership: You must hold fair hearings and a timely up or down vote for President Obama's nominee for Justice Scalia's replacement on the Supreme Court. Click here to sign the petition.

We don't yet know who President Obama intends to nominate. At CREDO, we will be pushing for the president to pick a strong progressive who will take seriously the Court's responsibility to the American people. But right now, the immediate need is to draw attention to Republicans' radical refusal to act at all, in direct contradiction of our Constitution.

Tell Senate Republican leadership: You must hold fair hearings and a timely up or down vote for President Obama's nominee for Justice Scalia's replacement on the Supreme Court. Click the link below to sign the petition:


Thank you for speaking out.

Heidi Hess, Senior Campaign Manager
CREDO Action from Working Assets

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  1. Harper Niedgig, "McConnell: Don't replace Scalia until after election," The Hill, February 13, 2016.
  2. Lydia Wheeler, "Judiciary chair: 'Standard practice' to not confirm SCOTUS nominee in election year," The Hill, February 13, 2016.
  3. David Jackson, "Cruz, Rubio: Next president should name Scalia replacement," USA Today, February 13, 2016.
  4. Jennifer Bendery, "Mitch McConnell Voted To Confirm A Supreme Court Justice In Reagan's Final Year," HuffingtonPost.com, February 13, 2016.
  5. Libby Nelson, "Antonin Scalia's death could lead to more 4-4 ties. Here's what happens if it does." Vox.com, February 13, 2016.
  6. Adam Liptak and Michael Shear, "Supreme Court to Hear Challenge to Obama Immigration Actions," New York Times, January 19, 2016.
  7. Adam Liptak and Coral Davenport, "Supreme Court Deals Blow to Obama's Efforts to Regulate Coal Emissions," New York Times, February 9, 2016.
  8. Emma Green and Matt Ford, "A New Supreme Court Challenge: The Erosion of Abortion Access in Texas," The Atlantic, November 13, 2015.
  9. Richard Wolf, "Supreme Court agrees to rule on birth control insurance mandate," USA Today, November 6, 2015.
  10. Adam Liptak, "Supreme Court Seems Poised to Deal Unions a Major Setback," New York Times, January 11, 2016.

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