Why a Judge’s Death Caused a Political Earthquake

Antonin Scalia was the most conservative of the nine Supreme Court justices. The issue of selecting his successor is fueling the current election campaign.

That was Antonin Scalia.

Scalia, who died yesterday at 79, was one of the nine Supreme Court justices. Nominated by Ronald Reagan, he was the leading conservative voice of the court. That he was considered “the most influential Supreme Court Justice in the period since his appointment” by the eminent jurist Richard Posner was due largely to his establishment of the theory of originalism. Scalia interpreted the Constitution literally the way it was written at the end of the 18th century.

A practicing Roman Catholic and “intellectual cornerstone of the court’s modern conservative wing,” he was known for his biting humor as well as for his relentless minority opinions. There was nothing, according to The New York Times, that Scalia hated more than vaguely worded laws.

The elegant stylist based his quest for clarity on his experience as a father of nine: “Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions — no television in the afternoon, or no television in the evening, or even no television at all,” he said at a Harvard lecture in 1989. “But try to let one brother or sister watch television when the others do not, and you will feel the fury of the fundamental sense of justice unleashed.” Even liberal media like The New Yorker took note of Scalia’s unorthodox personality: “Scalia is most likely to offer the jurisprudential equivalent of smashing a guitar onstage.” Scalia was a music fan who most often attended operas accompanied by Ruth Bader Ginsburg, the most liberal of the court’s justices. Because of that, they eventually became the subjects of an opera themselves.

The Supreme Court has played an important role in American politics because for years Republicans and Democrats were enmeshed in political gridlock and the court became a powerful element in Washington politics. It was the nine justices who decided that President Barack Obama’s health care law was constitutional and they also smoothed the way for the legalization of same sex marriage.

Five of the nine justices were nominated by Republican presidents and four by Democrats Bill Clinton and Barack Obama. The justices’ decisions usually reflected this division but on questions dealing with same sex marriage, the once conservative Anthony Kennedy’s stance moderated with age and he often became a deciding swing vote.

What Scalia’s Death Means for President Obama

Scalia’s sudden death has given Obama pause. According to the Constitution, the president has the right to nominate a replacement justice. Obama praised Scalia in a brief speech on Saturday evening and stated that he would nominate a successor “in due time.”

Since their terms are unlimited, justices can represent the political ideologies of presidents long after they have left office. Up to the present, Obama has selected two justices: Sonia Sotomayor and Elena Kagan, associate justices from the liberal wing of the U.S. government. But now things have changed: If Democrat Obama can get a replacement for Scalia approved by the Senate before he leaves office, the balance of power in Washington will change dramatically.

The Republicans React

Of course, the conservative Republican candidates for president realize that as well. All six of the remaining Republican candidates have accordingly demanded that Obama not nominate a successor for Scalia. Ted Cruz, himself once an assistant to George W. Bush’s legal team, described Scalia as “a legal giant” and warned his audience, “We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans.”

Donald Trump remains pragmatic, saying it would be better if Obama didn’t nominate anyone, but allowed that wasn’t likely: “I think it’s up to Mitch McConnell and everybody else to stop it,” said Trump. “It’s called delay, delay, delay.” Since the conservatives currently hold 54 of the 100 Senate seats and the nominee would need 60 votes, McConnell said the prospects for a successful blockade looked good.

Now the Supreme Court is right in the middle of an election: All the candidates are aggressively campaigning saying they will only nominate jurists acceptable to their party’s base (Sanders will only nominate candidates who advocate overturning the Scalia-supported “Citizens United” ruling that allows unlimited political donations).

Two terms will now be frequently bandied about: According to the “Thurmond Rule,” a president shouldn’t nominate justices but rather wait until after the next presidential election. The second term feared by conservatives is “recess appointment,” whereby a president can appoint a justice if Congress is not in session and is recessed. Fox News reports that that could conceivably be possible this coming week, but it is highly unlikely Obama would resort to such a measure at this time because it would be an enormous provocation.

What Happens If the Position Is Vacant for an Extended Period?

No matter how long there is no ninth justice nominated and approved by the Senate, the work of the court must still carry on. Several important decisions are due in June concerning abortion rights, affirmative action for minorities in college admissions and the right of the president to make far-reaching decisions about immigration and environmental policy by executive order.

As long as the Supreme Court remains split four to four, it is no longer capable of decision-making and the lower court rulings will still stand.

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1 Comment

  1. As a democratic socialist myself I am a critical supporter of Democrat Bernie Sanders and his rather vague leftist ” political revolution “. I suspect Sanders understands that even a moderate ” socialist ” president would think that the Supreme Court- progressive or conservative-as an American institution is quite simply incompatible with economic democracy. The working class majority- and America is no longer a middle class nation- cannot permit a single non-progressive judge to frustrate its political will. In short,, we must abolish the Supreme Court. THAT is political revolution. Abolish the Electoral College too. Finally, abolish capitalism and capitalist private property. This is political revolution, Bernie.
    [ http://radicalrons.blogspot.com ]

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