Antonin Scalia was the longest serving member of the U.S. Supreme Court. For nearly 30 years he served as one-ninth of our country’s third branch. Whether you agreed with his politics or were bothered by his strict constructionism, he was smarter than you and the smartest person you know put together. He was measurably the funniest member of the court. Before serving on our top federal bench, he served in lower courts, presidential administrations, and as a professor in the University of Chicago. He was survived by his wife of 56 years and their nine children.
After learning of his death, Washington and the news media did its best to capitalize on his cooling corpse.
Indeed, one of my friends noted she found out about Justice Scalia’s death by seeing a Republican candidate already explaining why the President shouldn’t appoint his replacement. So you better vote for him. Meanwhile, the left salivates at the opportunity for their Democratic president to replace the court’s foremost conservative with a balance-shifting liberal.
Our politicians and media are more classless than a Marxist utopia.
I hope my analysis can remain as objective and respectful as possible. Here are ten quick thoughts, culminating with where I side on the vacancy issue:
- The controversy: Should President Obama exercise his Constitutional authority to appoint Scalia’s replacement despite being a lame-duck president in the last year of his term? Democrats say yes. Republicans say no.
- Let’s be very clear about something: if it were a Republican in the White House, Republicans would be saying yes and Democrats no. The lesson, as always: the two parties reek of hypocrisy and are more motivated by defeating each other and fundraising than serving the American people.
- The composition of the court makes this a dramatic development for American politics. Before Scalia’s death, the nine seats were comprised of four liberals (Ginsburg, Breyer, Sotomayor, Kagan), four conservatives (Scalia, Thomas, Roberts, and Alito), and one swing voter (Kennedy). If Scalia is replaced by a conservative, the status quo is kept, although the conservative side becomes rejuvenated for another few decades while the aging Ginsburg and Breyer might be out soon. If Scalia is replaced by a liberal, the lefties total five and control the court.
- If the President does nominate someone, a majority of the Senate has to confirm the nominee. There are 54 sitting Republican senators to the Democrats’ 44, with two independents (including one who is running for the Democratic nomination) who caucus with the Democrats, in effect giving them 46. If Republicans vote in lockstep, they can deny any Obama appointment until President-elect Trump takes the oath of office and decides to fire all but one of the remaining justices after a ratings-busting reality TV program called “Here Comes the Judge.” If, however, President Obama can get his own 46 in line, he would need to find a nominee that could win over just four Republicans, allowing Vice-President Biden to break the tie.
- The public Democratic argument (as opposed to the private one that merely wants a liberal bench) for why President Obama should appoint the replacement is because Article II Section 2 of the Constitution says he shall.
- The Republican public argument is two-pronged:
- A President in his last year in office hasn’t appointed a Supreme Court justice in 80 years (1932 being the last time). He should let the American voters, through the upcoming presidential election, voice their opinion on what kind of judge they want to fill the vacancy. President Obama shouldn’t continue to subvert the will of Congress for his own political gain.
- In the 2014 midterm elections, the highly successful night for Republicans in both chambers of Congress show that the people want significant pushback on President Obama’s executive actions.
- Rebuttal to the above:
- Republican President Eisenhower nominated William Brennan in his re-election year of 1956, shortly before defeating Adlai Stevenson in November. It didn’t turn out to be the last year of his presidency, but it could have been had he lost. Eisenhower effectively did not “let the voters decide” in November. Furthermore, that was the ONLY TIME a justice died or retired in a presidential election year in this 80-year period GOP talking point. So it’s not as if our presidents have traditionally said it wasn’t their place to nominate someone if they’re a lame duck. It’s that the scenario has never happened in that window, with the quasi-exception of 1956, when the president did indeed nominate someone.
- The framers of the Constitution had no clause that said if a president’s party loses control of both chambers of Congress, he loses the right to appoint judges.
- What would Scalia himself have wanted in this situation? It’s a difficult answer. His conservativism might have wanted to keep the court from falling into the liberals’ hands, but his famously strict Constitutional interpretation must have acknowledged the right, and perhaps the responsibility, of the president to fill judicial vacancies.
- And that’s what I say, too. Can and should the President name an apointee? YES! It’s in the bloody Constitution! The American people don’t pick justices. Presidential candidates don’t pick justices. Members of the House don’t pick justices. The president does. And then it’s the Senate’s prerogative to advise and perhaps offer its consent. This is how the process works, election year or not. The work of the country, including one third of its federal branches, must go on.
- I suppose, considering the title of this blog, I need to connect this to presidential politics. Moving forward, expect Marco Rubio and Hillary Clinton to relentlessly build Scalia’s vacancy into their stump speeches. If the President has trouble getting a moderate to liberal nominee confirmed, that struggle will bolster Rubio and Clinton’s electability argument. With the ideology of the court hanging in the balance, that can be converted into a compelling case not to nominate a Trump, who faces the worst general election favorability in maybe forever, and Sanders, who’s tax-raising proposals, just like Mondale‘s before losing 49 states in 1984, will be played over and over in every political ad this fall. Ted Cruz, meanwhile, will proudly point to his conservative credentials to convince voters he’s the best man to which this responsibility should be given, while Bernie Sanders will do the same from the other side of the spectrum. In other words, prepare for the relentless politicization of a man’s death.