Antonin Scalia’s death highlights the enormous political divide in the US
United States Supreme Court Justice Antonin Scalia passed away suddenly in a hunting ranch in Texas on 13 February. Justice Scalia was a brilliant scholar and the leading originalist jurist in the United States, and by all accounts, a very personable guy. I didn’t know him though, and I was never a fan of Justice Scalia’s personal beliefs and his approach to constitutional interpretation. I remember being in constitutional law with Professor Lawrence when she explained the difference between originalism and the living tree approaches to interpretation. She told the class that Justice Scalia kept a copy of a late 18th century dictionary next to his desk to use when defining terms in the US Constitution. I found that hard to believe at the time, but now I know he apparently kept three. He famously said, “Words have meaning. And their meaning doesn’t change.” While I couldn’t disagree more with that statement, I do admire Justice Scalia’s tenacity and steadfastness: he had opinions, and his opinions didn’t change.
That Justice Scalia was best known for his strict adherence to the text of the constitution makes Senate Majority Leader Mitch McConnell’s comments—mere hours after his death—even more distasteful. McConnell stated, seconds after eulogizing Justice Scalia, that “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.” Leaving aside the fact that the American people did have a voice in the selection of their next Supreme Court Justice by way of the fact that an overwhelming majority voted for President Obama and the Senate that is currently in power, this comment completely ignores the text of Article II, which gives the sitting president the constitutional duty to nominate justices to the Supreme Court.
Sandra Day O’Connor, a retired Supreme Court Justice who, like Scalia, was also nominated by Ronald Reagan, publicly stated her disagreement with the Republicans, as did many other sane and rational people. However, since with every Donald Trump caucus win the Republican party seems to be slipping further and further away from reality, calls for decency and logic have been useless. On 24 February, Republicans on the Senate Judiciary Committee wrote an open letter stating that they will refuse to hold hearings (blatantly ignoring their own constitutional duty in Article II) on any nominee that President Obama offers up. This has never before happened in US history.
McConnell’s call for a Senate obstruction is also short-sighted for his own party’s interests. President Obama, who was well aware of what the Senate republicans thought of him before this mess, will be certain to nominate a judge with an excellent record who is extremely moderate. Even if it wasn’t an election year, he would be concerned about getting his pick confirmed. But what happens if the Senate listens to McConnell, successfully votes against the one or two moderates that Obama selects, and a Democratic candidate wins the Presidential election? Be it Clinton or Sanders, they are likely to nominate a judge who is at best (for the Republicans), just as moderate as one of the Obama choices, or worse (for the Republicans), someone significantly more liberal. Will they continue to obstruct judges until a Republican comes into power? Until the Democrat is forced to choose a conservative judge? Do the Republicans seriously believe that Trump would offer up a better candidate? This ridiculous obstructionist behaviour by the Republicans seriously undermines the constitution and the rule of law in the United States.
Republicans seem to be using two “facts” in order to support their view that the President should not nominate the next Supreme Court justice. The first, which gets worded a number of different ways, basically states that no president has successfully put forward a new Supreme Court Justice in an election year in the past eighty years. Weird that they would conveniently forget everyone’s favourite modern Republican President Ronald Reagan, whose nomination of Justice Kennedy was confirmed in 1988, the last year of his two-term presidency. There is nothing in the history of the US to support the idea that presidents should not be given a chance to fulfill their constitutional duties in their final year. It is also worth noting that all six Supreme Court vacancies during an election year in the past 116 years have been filled, although five out of six of these (Reagan as the exception) were made by presidents who were up for re-election. Three presidents were re-elected, two were not.
The second piece of misinformation the Republicans are throwing to the public like scraps of rotten meat is something known as the Thurmond rule, named after former Senator Strom Thurmond. Thurmond is best known for conducting the longest filibuster in US history in opposition to the 1957 Civil Rights Act. The rule is not law, and therefore not binding, but rather a general principle that supposedly originated with Thurmond which states that judicial nominees should not be confirmed in the last “six or so” months of a presidency. Democrats and Republicans have both invoked the rule, when it works in their favour, and called it invalid when it doesn’t, so I wouldn’t exactly say that the Thurmond rule is a solid piece of historic precedent to base an opinion on. At any rate, invoking it now isn’t even a correct application of the principle, as President Obama was faced with this vacancy with approximately eleven months left in his presidency.
Most pundits believe that President Obama is likely to pick a moderate Democrat who has had the support of most Republican senators in the past, such as Judge Sri Srinivasan, who in 2013 was confirmed unanimously by the Republican-led Senate to his role on the Court of Appeals for Washington DC. There have even been recent reports that centrist Republican Governor Brian Sandoval may be a potential nominee (Sandoval was the first Hispanic judge and governor of the state of Nevada). I am confident that whoever President Obama selects will be a well-rounded, intelligent, and extremely qualified individual, although I am significantly less confident about the fate of my broken nation.