Obama's choice: Inside the knotty fight to replace Justice Antonin Scalia on Supreme Court

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Justice Scalia's Death Could Have Major Effects on Pending Cases

Supreme Court Justice Antonin Scalia's death has set off a fiery debate in Washington over who gets to pick his replacement, a choice that will impact the American justice system for decades.

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Under typical circumstances, this wouldn't be such a big deal. But Scalia, the court's most influential conservative, died in President Obama's final year in office, in the middle of the court's term, with the candidates to succeed him fighting through the early primary season.

That makes this high court vacancy particularly complicated — and divisive.

Here are some of the key issues underlying Obama's big choice.

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Obama's choice: Inside the knotty fight to replace Justice Antonin Scalia on Supreme Court
FILE - In this Nov. 6, 2014 file photo Supreme Court Justice Antonin Scalia speaks in Washington. Scalia is joining the debate over the Senate's torture report by saying itâs hard to rule out the use of extreme measures to extract information if millions of lives were threatened. Scalia told a Swiss broadcast network that American and European liberals who say such tactics may never be used are being self-righteous. (AP Photo/Kevin Wolf, File)
WASHINGTON - FEBRUARY 21: United States Supreme Court Associate Justice Antonin Scalia (R) arrives at the American Enterprise Institue February 21, 2006 in Washington, DC. Justice Scalia delivered the keynote address about foreign law and the debate about how it is used in American Law during the seminar called 'Outsourcing Of American Law.' (Photo by Chip Somodevilla/Getty Images)
NEW YORK - OCTOBER 10: Supreme Court Justice Antonin Scalia walks October 10, 2005 in the annual Columbus Day Parade in New York City. This is the 61st Columbus Parade which celebrates both the explorer and Italian cultural influence on America. (Photo by Spencer Platt/Getty Images)
PHILADELPHIA - APRIL 29: U.S. Supreme Court Associate Justice Antonin Scalia addresses the Philadelphia Bar Association during a luncheon April 29, 2004 in Philadelphia, Pennsylvania. Scalia presented the first Antonin Scalia Award to Philadelphia lawyer and former American Bar President Jerome J. Shestack. Scalia is the third U.S. Supreme Court Justice to Address the Philadelphia Bar Association members in less than a year. (Photo by William Thomas Cain/Getty Images)
WASHINGTON, UNITED STATES: US Supreme Court Justice Antonin Scalia (L) attends inaugural ceremonies 20 January 2w005 on Capitol Hill in Washington, DC. US President George W. Bush was sworn in for a second term in a solemn ceremony held under unprecedented security on the steps of the US Capitol. (Photo credit should read TIMOTHY A.CLARY/AFP/Getty Images)
ANN ARBOR, MI - JANUARY 25: U.S. Supreme Court Justice Antonin Scalia speaks at the fifth annual Ava Maria School of Law lecture January 25, 2005 on the University of Michigan campus in Ann Arbor, Michigan. Scalia talked about religion and U.S. Constitution. (Photo by Bill Pugliano/Getty Images)
384802 07: (FILE PHOTO) This undated file photo shows Justice Antonin Scalia of the Supreme Court of the United States in Washington, DC. (Photo by Liaison)
382727 01: U.S. Supreme Court Justice Antonin Scalia talks with opera star Placido Domingo at a gala opening night dinner following a Washington Opera performance Oct 21, 2000 in Washington, D.C. (Photo by Karin Cooper/Liaison)
382727 17: U.S. Supreme Court Justice Antonin Scalia looks at a painting during an opening at the National Gallery of Art September 27, 2000 in Washington, D.C. (Photo by Karin Cooper/Liaison)
371151 07: Louis Freeh, Director of the Federal Bureau of Investigation, left, and Supreme Court Justice Antonin Scalia applaud during the Mass of Installation for Archbishop Edward Egan June 19, 2000 at St. Patrick''s Cathedral in New York. (Photo by Chris Hondros/Newsmakers)
382727 05: U.S. Supreme Court Justice Antonin Scalia attends a National Gallery of Art opening ceremony September 27, 2000 in Washington, D.C. (Photo by Karin Cooper/Liaison)
WASHINGTON - APRIL 29: (L-R) Supreme Court Justice Antonin Scalia, Jason Binn, and Charles Merinoff inside the Correspondent's After Party hosted by Capitol File Magazine on April 29, 2006 in Washington, DC. (Photo by Nancy Ostertag/Getty Images)
Associate Justice Antonin Scalia joins the members of the Supreme Court for photos during a group portrait session, at the Supreme Court Building in Washington, Monday, Oct. 31, 2005. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat Sept. 26, 1986. (AP Photo/J. Scott Applewhite)
Members of the U.S. Supreme Court pose for a formal portrait in Washington, April 15, 1988. From left, front row are: Associate Justices Thurgood Marshall; William Brennan, Jr.; Chief Justice William Rehnquist; Byron White; and Harry Blackmun. Back row from left are: Antonin Scalia; John Paul Stevens; Sandra Day O'Connor; and the court's newest member, Anthony M. Kennedy. (AP Photo/Bob Daugherty)
Supreme Court Justice Antonin Scalia administers the oath of allegiance to new citizens, during a ceremony commemorating the 150th anniversary of the dedication of the Soldiersâ National Cemetery and President Abraham Lincoln's Gettysburg Address, Tuesday, Nov. 19, 2013, in Gettysburg, Pa. Lincoln's speech was first delivered in Gettysburg nearly five months after the major battle that left tens of thousands of men wounded, dead or missing. (AP Photo/Matt Rourke)
U.S. Supreme Court Justice Antonin Scalia jokes about his experiences as a law student at a program with fellow Justice Elena Kagan, Monday, Dec. 15, 2014 at the University of Mississippi in Oxford, Miss. Both justices spoke to an open audience of professionals, professors, students and area residents about their law school and professional experiences as well as some of their court decisions. (AP Photo/Rogelio V. Solis)
U.S. Supreme Court Justice Antonin Scalia gives the keynote speech at the Snake River Adjudication celebration dinner at the Boise Center on the Grove in Boise, Idaho, on Monday, Aug. 25, 2014. (AP Photo/Otto Kitsinger)
Supreme Court Justice Antonin Scalia stands at the edge of the stage after a question and answer session delivered as part of a lecture series at Tufts University, Wednesday, Oct. 2, 2013, in Medford, Mass. Scalia, who has served on the nation's highest court since 1986 following a nomination by President Ronald Reagan, spoke about interpreting the U.S. Constitution. (AP Photo/Josh Reynolds)
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Supreme Court Justice Antonin Scalia's death has set off a fiery debate in Washington over who gets to pick his replacement, a choice that will impact the American justice system for decades.

Under typical circumstances, this wouldn't be such a big deal. But Scalia, the court's most influential conservative, died in President Obama's final year in office, in the middle of the court's term, with the candidates to succeed him fighting through the early primary season.

That makes this high court vacancy particularly complicated — and divisive.

Here are some of the key issues underlying Obama's big choice.

What impact does Scalia's death have on the current Supreme Court term?

For the immediate future, the court now only has eight members, which means no tie-breaking votes.

If the court splits 4-4, then their decision is essentially negated, and the opinion of the previous federal appeals court stands — without making law for the rest of the country — University of Michigan law professor Samuel Bagenstos told NBC News.

Because the court has already heard arguments and voted on several cases — but has yet to publish the opinions — Scalia's death has the effect of negating any of tie-breaking votes he made before he died.

"Unless a justice is sitting at the court at the time of argument and at the time the decision is issued, the justice's vote doesn't count," Bagenstos said.

And that is no small matter. The court has heard or has agreed to hear cases involving the constitutionality of considering race in college admissions, how far states can go in restricting abortion, the viability of public sector unions, whether Obama can defer deportations of unauthorized immigrants and the balance between religious freedom and women's access to contraception.

What are the battle lines on Capitol Hill?

Right down the partisan divide.

Senate Democratic Leader Harry Reid and other top Democrats want their Republican colleagues, who control the Senate and wield enough votes to scuttle Obama's nomination, to pledge to confirm a new nominee before the president leaves office.

But Republicans say there's no way that will happen.

"What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia," Conn Carroll, the communications director for Republican Sen. Mike Lee of Utah, who serves on the Judiciary Committee, posted on Twitter.

Obama ought to defer his nomination to the person who replaces him, Republicans argue.

"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," Senate Majority Leader Mitch McConnell said over the weekend.

What has Obama said he'll do?

Almost immediately after Scalia's death became public, Obama announced his intention to nominate a successor himself.

He framed it as a question of keeping the American government operating as designed.

"These are responsibilities that I take seriously, as should everyone," Obama said. "They are bigger than any one party. They are about our democracy. They are about the institution to which Justice Scalia dedicated his professional life, to make sure it functions as the beacon of justice that our founders envisioned."

He didn't name any preferences, or indicate when he would, other than to say there is plenty of time to make a nomination and for the Senate to confirm that person before he left office.

What do the presidential candidates say?

All but one of the the six Republican presidential candidates at Saturday's GOP debate in South Carolina said Obama should either not nominate a justice and leave the decision for the next president, or the Senate should block any pick.

The only holdout was Jeb Bush, who said Obama "has every right" to nominate Scalia's successor, and urged him to pick a consensus candidate.

Democratic presidential candidate Hillary Clinton said on Sunday that Obama "was elected, he has the right to nominate another Supreme Court justice."

Clinton, a former U.S. senator, also said lawmakers had a "constitutional responsibility" not to block a nominee for political reasons.

Her rival, Sen. Bernie Sanders of Vermont, agreed. "Let's get on with it," he said.

What's the precedent for nominating a justice in the last year of a presidency?

Obama's opponents say no such precedent exists.

But that's not necessarily the case — although the circumstances are extremely rare.

Only seven times since 1900 has a president nominated a Supreme Court justice during a presidential election year.

During that time, no president has chosen not to nominate a Supreme Court justice because of an impending election. And the Senate has little history of rejecting those late-term choices.

Who are the key names on Obama's the short list of potential nominees?

Among the leading contenders, legal and political analysts say, are D.C. Circuit Judge Sri Srinivasan, Attorney General Loretta Lynch, Ninth Circuit Judge Paul Watford, U.S. Court of Appeals Judge Patricia Millett, and Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit.

A leading Supreme Court researcher, Tom Goldstein, wrote a column Monday that put Lynch at the top of the list because she was recently vetted and approved by the Senate for her current job.

How does the nomination and confirmation process work?

There's no way to predict how this situation will unfold. But in general, this is what happens:

The president is empowered by the Constitution to nominate Supreme Court judges, with "advise and consent" of the Senate. That means a lengthy Senate confirmation process, although in rare cases, presidents have made "recess appointments" to without the approval of Congress, which expired at the end of the Congressional session.

Since 1925, nominees have first been considered by the bipartisan Senate Judiciary Committee, which currently has 20 members — 11 Republicans and 9 Democrats. The nominee also traditionally does "courtesy calls" on Capitol Hill to meet with individual senators in advance of the hearing.

The committee members then vote on the nominee. The vote then goes to the full Senate.

To avoid filibusters, Supreme Court appointments still essentially require the consent of 60 senators to go forward.

The current breakdown of the Senate is 54 Republicans, 44 Democrats and 2 independents, who caucus with the Democrats.

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