Like most people in the United States, I was surprised to hear of the death of Supreme Court Justice Antonin Scalia on Saturday. Although he was the longest-serving justice on the current Court, he was, at 79, not the eldest, and was considered to be in good health.
He has been the anchor of the conservative justices on the Court for many years. He was an originalist, trying to interpret the Constitution as intended by its authors. I think of originalists as being akin to fundamentalists in religious interpretation. (When interpreting documents, I am more inclined toward taking into account the historical setting of the time a text was written, as well as historical-social developments since to gain contemporary understanding, which is the opposite school of thought to Scalia’s viewpoint.)
What was most shocking to me, though, was the reaction within hours by the Republican leaders of the Senate and the Republicans running for the presidential nomination that President Obama should not nominate a replacement for the Supreme Court vacancy, instead leaving it open until his successor takes office. (For those of you outside the United States, the Constitutionally-proscribed procedure is that the President nominates a person for the Supreme Court and the Senate then votes to accept or reject the nominee. Supreme Court appointments are for life and choosing Supreme Court nominees is considered one of the most important duties of the presidency.)
I was shocked first in social/human/religious terms, that the Republican Senate leadership was so immediately politicizing Justice Scalia’s death. In the first hours and days after his death, there should have been recognition of his public service and condolences to his wife, their nine children and many grandchildren, colleagues, and friends, not political wrangling about his replacement. It was sadly ironic that many of the same politicians who say it is disrespectful to the families of victims to discuss gun control legislation in the aftermath of a mass shooting had no qualms about politicizing Justice Scalia’s death before his body had even been transported back to his hometown.
The Supreme Court has been closely divided in recent years, issuing many 5-4 decisions. With Justice Scalia gone, the current term is likely to be produce a number of 4-4 ties, which means that lower court rulings will stand, but that no precedent has been set. Those cases or issues are likely to come back to the Supreme Court in the future.
If a replacement for Justice Scalia has not been confirmed by October, when the next Court session will begin hearing arguments, the country risks losing the voice of the Court for another whole year.
Our government is already suffering from gridlock; we can’t afford to make it worse.
The Congressional Republicans have been obstructing much of the normal legislative functions of passing bills and timely confirmation of executive and judicial appointments during the Obama presidency.
It has to stop.
If the Republicans delay or obstruct a Senate confirmation for a Supreme Court justice, they are violating the Constitution that they have sworn to uphold.
PS Within an hour of posting this, I ran across this segment of John Oliver discussing Scalia’s replacement. I thought you might enjoy it. Warning: there is a bit of adult language. https://www.youtube.com/watch?v=9Vt9xV9ZI74
Top of JC's Mind 