Written by Andrew Schwartz
The death of Justice Antonin Scalia, leader of the so-called intellectual conservative renaissance, has left two grand vacancies on the Supreme Court: one emblematic and one literal.
Scalia—whom the political right has revered passionately for his gruff command of oral arguments, transformative legal precedents, unmatched intellect, and his overtly conservative constitutional interpretations—has left behind a legacy of intellectual American conservatism. By the time he wrote his most important majority opinion in District of Columbia v. Heller, which guaranteed an individual’s right to possess a firearm for traditionally lawful purposes, Scalia’s unique, originalist, constitutional philosophy emerged as the dominant mode of conservative jurisprudence. In fact, Scalia’s originalism—that is, the principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment—though grossly antiquated, arguably changed the scope of constitutional interpretation for the most recent members of the Court.
Even for a person who disagrees with Scalia on virtually all of his ideological positions, I must admit I can’t help but find his methods oddly compelling. No other justice could write or grill attorneys with such surgical precision. Though I do believe I could go on and on about my conflicted admiration for Justice Scalia, the question of what lies ahead following his unexpected death is far more pressing at this time.
In addition to the emblematic vacancy of intellectual conservatism, Scalia’s death has added an entirely new element of controversy to both the 2016 presidential election and President Obama’s closing months of presidency. Just moments after the former Justice’s death was announced, members of both parties scrambled heedlessly: those on the left to find a progressive, liberal successor to Scalia, and those on the right to halt any nomination by any means necessary.
A group of Senate Republicans led by Senate Majority Leader Mitch McConnell (R-Ky) has made it clear that they have no intention of allowing President Obama to make a final appointment in the closing months of his Presidency. Senator McConnell, who has taken it upon himself to thwart any of the President’s operations since his election in 2008, has claimed that the president is overstepping his constitutional bounds by making appointments in the final year of his presidency.
“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,” McConnell said in a statement made hours after the Justice’s death. In vowing to block a Supreme Court nominee who has not even been named, McConnell, not only relentless and inflexible, is fundamentally flawed.
First of all, the American people did have a voice in the selection of their next Supreme Court Justice when they elected President Obama by a margin of 126 electoral votes. Additionally, the President’s appointment powers, enumerated by Article II, § 2, Clause 2, include no exception for when the president is in his final year of office. (I can only imagine Scalia, the devout constitutional originalist, rolling over in his grave at the very thought of this abstract constitutional inference). So not only is the undertaking by GOP Senators like McConnell morbid and single-minded, it is completely unjustified.
What is even more unnerving about McConnell’s actions is how overtly hypocritical they are. McConnell, who claims the President has no constitutional authority to appoint a justice in the final months of his Presidency, voted to confirm Supreme Court Justice Anthony Kennedy in 1988, which was the last year of Reagan’s presidency.
The Senate considered Reagan’s nomination for 92 days, and then voted to confirm Justice Kennedy by a margin of 97 to 0. This unanimous confirmation of Kennedy—much like Scalia’s 98 to 0 Senate confirmation two years prior—did not indicate Senate Democrats’ agreement with Kennedy’s conservative judicial philosophy. Rather, it represented the Senate’s willingness to compromise with the President despite ideological differences and, as the New York Times Editorial Board put it, their “customary acknowledgment—at least until recently—that the president had fulfilled his constitutional duty and selected a clearly qualified person for the post.” Overall, it is fair to say that the controversy surrounding the Court’s vacancy is really past the point of hyper-partisanship. Rather, it’s indicative of dozens of elected representatives blatantly not doing their job.
The controversy surrounding this Supreme Court nomination opportunity speaks to one harsh fact: how appointments to the Court have been weaponized into a mechanism which the political elite use to implement binding legal precedents. The Supreme Court, which was designed by the framers of our Constitution to be an apolitical entity, responsible only with interpreting the law of the land, has evolved into a hyper-political agent of radical change.
Today, members of the Supreme Court often act like legislators, substituting their own political opinions for the applicable law, a practice known as judicial activism. Unfortunately, judicial activism, which Justice Scalia happened to detest like a sickness, is often the only way of establishing overarching legal precedents. However, one could argue that the trend of judicial activism is somewhat of a necessary evil. Because Congress is so dysfunctional and inefficient, often times the only way to implement laws is by means of judicial precedent.
This begs us to ask the questions: what would the Civil Rights Movement have been without Brown v. Board? How would women’s reproductive rights be protected if not for Roe v. Wade? The difficulty rests, however, in deciding where to draw the line.
In the end, this question of whether or not the Court is overstepping their bounds is one for another time. Today, what we should be thinking about is how President Obama will be able to sidestep the GOP Senators and pick a new justice before the end of his presidency. It really isn’t a matter of partisanship. It’s a matter of constitutionality. If Justice Scalia were alive today, I’d like to think he’d scoff at Senate Republicans – members of his own tribe – for such a distorted undertaking.