Usually in a civilized society, the death of a public servant warrants a time period of mourning and respect for the deceased’s service to the nation before you jump all over the corpse and squabble over the next step.
None of that happened Saturday, Feb. 13, when Justice Antonin Scalia died in his sleep at age 79 at a vacation ranch in Texas after a day of quail hunting.
Within hours of the news, the Senate Republicans formed a blockade. They said they would wait more than ten months for the next president to replace Scalia no matter who President Obama sent their way: a clear warning shot.
Obama that evening offered thoughtful praise of a justice he frequently disagreed with and then made it clear that he would fulfill his constitutional obligation and put forward a replacement. But both the Senate majority leader and the GOP chair of the judiciary committee pledged not to “advise and consent” but reject any nominee out of hand.
Louis Butler Jr. well understands this level of GOP obstinacy. As a lawyer he argued before Scalia and the other eight justices. As Wisconsin Supreme Court justice, his robes were once borrowed by Scalia to officiate a wedding. But after right-wing hatred and money in 2008 ousted him from the state high court, Butler was recommended four times by Obama for the federal bench only to be blocked by Senate Republicans.(Since then, all Butler’s attacked opinions have been vindicated.)
Based on past practices, Butler said in an interview, the president may have several options about how to proceed that the public is not aware of. He told me, “I agree with Sen. Elizabeth Warren that the president must proceed, as he says he will, by putting forward a nomination.”
“I don’t find it persuadable for the Senate leadership to prematurely announce they will oppose anyone the president nominates-he might as well not put anyone forward because they’ve said they won’t listen,” noted East Coast constitutional lawyer Floyd Abrams, who has argued before the highest court many times. “There should be hearings and reasons for the public to consider.”
Emailed one GOP wag, “If Obama nominated Jesus, we would claim it was Mohammad in disguise.”
The Supreme Court has become Political Issue No. 1 in this presidential year. One death has moved the court’s future to the front burner and put ahead of economics and ISIS the importance of picking a president whose recommendations will guide the U.S. for generations. The Supreme Court issue slapped cold water on the face of the electorate, as has the GOP’s determination to block what the constitution requires.
Scalia’s death was unexpected since he was rumored in fine health and typical jovial form. But the gridlock over his replacement – and the reality that he may only be the first of several – has led citizens who never paid attention to politics to realize their vote on the president could influence constitutional interpretation and what is legal and what is not for decades to come. At 79, Scalia may have been the longest serving justice – 30 years – but he was not even the oldest.
Some argue Scalia’s death may galvanize conservatives into more fear of the future than their current slate of candidates has been generating, if that is possible. But the void created is realistically a boost for the Democrats. Both Sanders and Clinton are experienced politicians who seem far more reliable in SCOTUS nominations – not just more liberal, but more pragmatic and understanding of the importance of judicial insight in choosing serious candidates.
On the Republican side, Trump is particularly hurt since no one knows what to expect if he ran the process like a craps game. Nor did his mention of several names suggested by his staff help when in television interviews he clearly knew little about them. (They included Milwaukee radio host Charlie Sykes’ ex-wife, Diane, who serves on the federal bench and has few major decisions to her credit.)
Cruz, on the other hand, has inserted so many litmus tests on his choices – must end Roe vs. Wade, must not negotiate on Affordable Care Act, must not welcome undocumented immigrants – that voters will realize that what looks macho in the Senate looks foolish on the Supreme Court. Resistance to compromise and nuanced thinking did not even fly with Scalia.
Meanwhile, legal experts such as Butler point to certain realities that the public has not yet grasped. While the court can function with eight justices and often has, decisions that would have broken 5-4 will probably not be decided until there is a new justice, which will not in the best case be for months and may not happen until next year, and then months longer for judicial contemplation. The chief justice has many options, Butler and other legal experts noted, but always hovering is this reality: “A decision is not final until it is released,” Butler said.
Justices often change their minds not just in debate but even in writing decisions. SCOTUS has several options in postponing, moving ahead on cases previously argued or even in throwing out cases on technicalities, but the cases that loomed 5-4 may quickly revert to whatever was decided by a lower court. Some may be re-litigated, others may not.
Normally it takes five months for vetting and hearings. In the current political environment, we could be years away from conclusions in close cases even as SCOTUS creeps ahead on a busy slate of issues when it resumes sessions in late February. These include: abortion rules in Texas, affirmative action, the contraceptive mandate in the Affordable Care Act, the Friedrichs union case, immigration and deportation. The GOP view that all these can simply wait struck the court experts I interviewed as sheer nonsense. Justice so delayed by senatorial stubbornness could really be justice denied.
Both political insiders and legal experts think Republicans may be missing their best bet to so universally renounce in advance any choice put forward by Obama. They think it’s pie in the sky to think a Republican can win the White House or that the GOP can keep the Senate. “They will never have a better chance at a moderate nominee since Obama will be concerned about what he can get through,” one Republican operative told me off the record.
Progressives see the Republican attitude as an opportunity. Imagine, as MSNBC host Rachel Maddow did, if Obama put forward someone recently vetted and approved 78-16 in a recent Senate vote for the new Secretary of Homeland Security. She was referring to Jeh Johnson, who also served as chief defense department counsel and in private practice was a respected trial lawyer for corporate concerns – someone hard to reject and even harder to manufacture delays around without looking foolish.
Linda Greenhouse, retired judicial reporter for The New York Times, pointed out gently that Scalia’s reputation exceeds his actual number of winning decisions on the court.
She didn’t mention in TV interviews what several legal insiders noted to me in phone interviews about his view of originalism – a study of what the original documents and Constitution meant and sticking with those words even to the point of checking dictionaries of the era. In Scalia’s hands, originalism was something of a cover for his own brand of judicial activism. They cite his Second Amendment decision, which basically ignored as some sort of throat clearing the opening phrase, “A well regulated Militia, being necessary to the security of a free State,” to focus on “the right of the people to keep and bear Arms, shall not be infringed” (note the second comma).
Another Reagan appointed conservative judge who has served on the federal bench longer than Scalia, Richard Posner of the Seventh District Court of Appeals, dissected the farce of Scalia’s originalism in a pointed New Republic article.
Yet despite such criticism from experts on both sides, Scalia through personality and presence has been magnified by the right into the ideal judge – to the point that GOP leadership seems quite willing to freeze the US Constitution and the high court system in a vain hope of finding an acceptable clone.
Photo: An American flag flies at half-staff in front of the U.S. Supreme Court building in Washington, Feb. 14, after the death of Supreme Court Justice Antonin Scalia. Manuel Balce Ceneta | AP