The unexpected death of Associate Supreme Court Justice Antonin Scalia has brought into sharp focus the fact this election cycle will decide not only control of the White House, but also the high court and the U.S. Senate—in other words, all three of the coequal branches of government.
Scalia was a giant of the conservative jurisprudence that has come to play such a decisive role in our national life. His opinions on free speech and due process may have as many admirers on the left as they do on the right. Even so, his particular theory of constitutional interpretation—textualism, in which judges rely on nothing to guide them but the simple text of the document itself—was something to which Scalia increasingly gave intellectual rather than actual judicial deference as the years went on.
He was as well known for his affability as he was for his intellectual rigor and the biting inflexibility of his opinions, particularly in dissent. I lunched with him once some years ago, when I was writing legal affairs editorials for the Los Angeles Times. He was charming, witty and utterly unpretentious. I recall his pointed quip about the lack of any real intellectual give-and-take in the justices’ private conference, which was then presided over by his good friend, Chief Justice William Rehnquist. “I have a recurring nightmare,” Scalia said, “that I’m going to sit down and say, ‘Chief, if we hold this way on this case, we’re essentially repealing Marbury v. Madison’ He replies, ‘You may be right, Nino, but we have the votes.’”
Later I asked him to explain Textualism to me, which he graciously did, eloquently and at some length. “My Justice,” I said, “I think I understand, but doesn’t this approach essentially elevate clumsy construction to holy writ?”
He chuckled, and said, “That’s true, but it’s all we have.”
Apart from the human tragedy of Justice Scalia’s sudden death, the other tragedy about to unfold is the enmeshment of his successor’s appointment and confirmation in the politics of a particularly chaotic and viciously partisan electoral cycle.
Various Senate aides already are on Twitter saying that there is no chance the Senate will confirm any nominee President Barack Obama sends to them. Senate Majority Leader Mitch McConnell issued a statement saying that the president should withhold a nomination and let the next chief executive—presumably a Republican—name a justice.
As it stands, the court now is split 4-4 between Democratic and Republican appointees and the GOP seems resolved to make sure what was the 5-4 balance in their favor while Scalia lived will remain that way. “Let the people decide” through presidential election was something heard with increasing frequency Saturday afternoon.
Neither party or ideological bloc has an intrinsic right to any seat on the court, and the right to appoint is vested by Constitution in the president. The Senate has the right examine and confirm that nominee, but if they do so on a purely partisan basis they debase their constitutional responsibilities to the point of farce. President Obama will occupy the Oval Office and enjoy the full powers of the presidency for the next 11 months. What, beyond pure party politics, would deny him the full exercise of his responsibility to appoint federal judges? The people did speak eight years ago and, again, four years ago, and they gave the power to appoint new Supreme Court Justices to Barack Obama.
Given the tenor of the Republican presidential campaign and the reckless, self-interested qualities of the frontrunners, it doesn’t take much imagination to see just how dangerous and ugly this whole business is going to become, if it is a litmus issue in every primary from now to the convention.
It could get even worse, if as some legal analysts—including Jeffrey Toobin—are correct that the first name on Obama’s list of prospective appointees is a justice on DC Circuit, Sri Srinivasan, who immigrated to this country with his family from India as a small boy. He went on to graduate from Stanford and clerked for Supreme Court Justice Sandra Day O’Connor. His appoint to the appellate court was unanimously confirmed by the Senate.
How could many of those same lawmakers now find him objectionable?
The answer, of course, is partisan politics—and those will take a particularly vile turn, if the anti-immigrant nativism now being promoted by Donald Trump, Ted Cruz and their followers bleeds into any confirmation struggle.