I decided to take some time and not post a “breaking” story about the death of Supreme Court Justice Antonin Scalia because I wanted to take time to compose my thoughts with regard to both Justice Scalia and what the vacancy on the Court will mean for the nation.
Justice Scalia was a giant. Agree with him or disagree with him, for 28 years, Justice Scalia staked out his position on the nation’s highest court and was unashamed in his position. There are issues (marriage equality etc.) where I disagreed with Justice Scalia, but his stalwart defense of the Fourth Amendment as well as his originalist mindset were a boon to both the Court and the nation.
I still remember being an undergraduate student and going to one of the local law schools to watch a speech given by Justice Scalia. He knew he was in an unfriendly environment: a bunch of idealistic proto-lawyers with axes to grind. However, his talk was phenomenal. Despite obvious disagreements, Scalia was entertaining, engaging, and polite. He may not have changed people’s minds, but the man’s intellect and demeanor allowed for real, substantive discussion rather than the base and crass political one-upsmanship wherein we so often find ourselves in our society.
What most folks don’t know is that most of the Supreme Court’s decisions aren’t the 5-4 newsmakers with blistering dissents and ripples in the culture war. Rather, the Court often splits in ways that the 24-hour news media would have problems trying to report. As I mentioned above, on issues related to search and seizure and the principles of civil libertarianism, Justice Scalia was a giant. Of course, his jurisprudence drew criticism. No one rises so high for so long without drawing scorn. Rather than admonish the figures gloating over his death, I think Justice Scalia would just chuckle and then ask them which opinion they hated him for and then have an engaged discussion about the precedent.
As pained as “conservatives” are over the death of Antonin Scalia, it’s important for the nation to reflect that several justices on the high court are reaching into their late-70s and 80s (I’d be remiss here not to note that, despite their ideological differences, Justices Scalia and Ginsberg are/were actually close friends).
President Obama, pursuant to his responsibility under the Constitution will appoint a successor to Justice Scalia. It is likely that the Senate, controlled by Republicans will not take up this nomination. There is precedent (the Thurmond Rule and the judicial appointments of John Tyler) for the Senate declining to take up appointments until the next President. However, this debate will cause a great deal of soul searching in both the Republican and Democrat primary fields. At its most basic level, voters will be choosing both a President and a Supreme Court Justice in 2016.
A possibility exists where Obama would nominate a consensus moderate to the Court and get the nomination through, but, given the nature of the election debates going on, that seems unlikely. It’s too early to think about who benefits on the Republican side of the discussion from a Supreme Court vacancy. The safe bet is that the most “electable” candidate against Hillary Clinton in November is the one who will rise in the minds of voters.
Justice Scalia, regardless of your personal or political beliefs, was a man of principles with an intellect to rival anyone else on the Supreme Court. His death creates (aside from a terrorist attack or a stock market crash) the most important issue of the 2016 Presidential cycle. Pray for Antonin Scalia and the large family he leaves behind.