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Remembering Justice Scalia and what he would have wanted

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In his 30 years on the Supreme Court, Justice Antonin Scalia established himself as the intellectual foundation of the conservative movement, revolutionized American jurisprudence, and animated the Court with such sayings as “jiggery-pokery.” He won over court-watchers of all stripes with his wit and counted Justice Ruth Bader Ginsburg, the loyal opposition, among his closest friends. Chief Justice John Roberts said of Scalia after his passing, “He was an extraordinary individual and jurist, admired and treasured by his colleagues.” Nino, as he was known by his friends and family, was 79.

Scalia was a champion of “originalism,” the doctrine of interpreting the Constitution as it was understood at the time of ratification. With this philosophy came many positions that many of us would find utterly indefensible. He was bitterly opposed to same-sex marriage, he was unyielding in his opposition to abortion, and he once claimed that “blacks” might be better off in “slower-track schools where they do well.” But above all the reasons why Republicans loved him and Democrats loathed him, he could find common ground in one truth: The Constitution comes first.

An hour after news of Scalia’s death broke, Senator Mitch McConnell opined that that the Senate should not act to confirm a successor until after the 2016 election. The Republican Majority Leader said in a statement, “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.” Just as quickly, Democratic Minority Leader Harry Reid declared, “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.” Party loyalists filled in on their respective sides. 

The high-stakes politics of an election year will certainly frustrate and complicate any nomination process. But does that mean, as Senator McConnell and the chorus of his Republican colleagues would have us believe, that nominating and confirming a successor is inappropriate?

It’s Justice Scalia we’re remembering here, so let’s return to our Constitution. Pursuant to Article II, the President “shall nominate, by and with the Advice and Consent of the Senate… Judges of the Supreme Court.” It’s worth noting that since 1789 – that is, for the past 227 years – “the Advice and Consent of the Senate” have been understood as the Senate’s confirmation process. Rarely is our Constitution is so clear: President Obama must nominate a successor, and the Senate must deliberate the nominee.

There has only been one instance since 1900 that the Senate refused to confirm a Supreme Court nominee in an election. This was the work of Republican Senator Strom Thurmond, a man known for little more than his staunch segregationism, whose filibuster of Abe Fortas in 1968 has become the proud talking point of Republicans since Scalia’s passing. In Saturday night’s debate, Ted Cruz cited the so-called “Thurmond Rule” as sufficient legal basis for waiting to confirm Scalia’s successor. There’s only one sticking point: The Thurmond Rule is not a rule. It’s not a law. And it certainly does not exist in the Constitution. Strom Thurmond gave our democracy many things: a call to segregate into the 21st century, a call to arrest gay people for being gay, and this so-called “Thurmond Rule.” Thankfully, our democracy has survived despite and without these things.

With 1960s nostalgia aside, it’s time for our government to get back to work and find a successor for Justice Scalia. The Constitutional obligations of the President and of the Senate still stand, whether Republicans in Washington find them convenient or not.

Unfortunately, the American people have grown used to the do-nothingness of Congress. In fact, both the 112th and 113th Congress did less than the “Do-Nothing” 80th Congress of the 1940s. Let us not now permit this political paralysis to plague the Court. It’s one thing to disrespect the legislative process with 50 petulant attempts to repeal the Affordable Care Act. It’s a far more sinister act to ignore a Constitutional responsibility and rob the Court of a justice. And frankly, Justice Scalia wouldn’t have stood for it.

He had a particular vocabulary for this variety of partisan gimmicks. I imagine Scalia would have called Senator McConnell’s yearlong dereliction of duty “pure applesauce.” I presume he would have dismissed McConnell’s discursive legal musings as following but the “mystical aphorisms of the fortune cookie.” And I bet the fan-favorite, “blah blah blah, garbage” would have figured somewhere into his analysis of the decision to delay.

Or perhaps Justice Scalia would have told Republicans in the Senate outright: “I am not happy about the intrusion of politics into the judicial appointment process.”

 

Contact Stephen Paduano at spaduano ‘at’ stanford.edu

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