Obama Will Appoint Scalia Successor, but Who? Justice Biden or Even Justice Obama?

FILE - This March 14, 2014 file photo shows Supreme Court Justice Antonin Scalia speaking in Atlanta. Supreme Court opinions
FILE - This March 14, 2014 file photo shows Supreme Court Justice Antonin Scalia speaking in Atlanta. Supreme Court opinions are rarely susceptible to the kind of fact-checking that reporters usually employ on politics. But Scalia’s hearty dissent in an environmental case on Tuesday contained such a glaring error of fact _ misreporting an earlier case in which Scalia himself wrote the majority opinion _ that the justice changed the opinion and the court quietly posted the corrected version on its website without notifying anyone of what had happened. (AP Photo/David Tulis, File)

It is fair to say that no other single justice has had as great an impact on constitutional interpretation as Antonin Scalia. I was head of the office of legal counsel at the time Antonin Scalia was named by Pres. Reagan. When Warren Burger resigned in 1986, we Reagan lawyers thought we were very clever by having the president nominate the sitting Justice William Rehnquist to the Chief Justice position and then filling Rehnquist's vacancy with Scalia. It was a twofer. What we hadn't fully realized was that it was far more than that, because of the intellectual strengths and tenacity of Scalia's belief that the Constitution should be interpreted in accordance with its original understanding. At the time of his appointment, Scalia was seen as being the first Italian-American and by virtue of that his nomination was virtually unopposed. It is fair to say, had there been a re-confirmation vote after his judicial personality and intellect were revealed, that the Senate would have had a different view. While I didn't always agree with Justice Scalia, it would've been greatly unfortunate had we never had his service on the highest bench. Until the theory of original understanding, Supreme Court interpretation was more politics than law and one could see judges undertaking functions for which they had no special gift for resolving. Because not originalist outcomes were often good from the standpoint of policy or popularity, they seldom were challenged. What Scalia recognized was that the end does not justify the means, and constitutional interpretation must have a basis for legitimacy in order to be persuasive and long-lasting.

In terms of specific areas, justice Scalia will be remembered as a man of faith who -- sometimes quite controversially -- seemed to allow that faith to determine where he put the thumb on the scale. Scholars will recognize, however, that this is not entirely true because it was Antonin Scalia, who articulated the view that the free exercise of religion was necessarily subject to general laws that were neutrally drawn and that no person could use religion to become a law unto himself. It will be this interpretation by Justice Scalia that will in all likelihood, prevent local laws from being used to selectively disadvantage same-sex couples. A particular religion may claim that same-sex marriage is immoral, but because of Scalia's reasoning that a moral claim is not automatically entitled to a legislative exemption from the general requirement that equality apply to all. So, too, given the extent to which religion sometimes is used to hide subversion -- as is sometimes true with the violent fundamentalist conception of Islam -- laws of general applicability requiring public order will prove to be essential to the safety of our domestic order.

Justice Scalia was the head of the office of legal counsel, the chief presidential lawyer, in the Ford administration. It would be my honor to succeed him several times removed in the second term of the Reagan administration. Having studied his opinions closely both as presidential lawyer, appellate judge and on the Supreme Court, Scalia was an unwavering defender of the separation of powers as a way of reducing the likelihood of tyranny or abuse of authority. It was Scalia, who recognized the potential abuse of the independent counsel statute, long before it was misused to bring impeachment action based on personal failings against Pres. Clinton. It was Antonin Scalia's lone dissent in the case that upheld the constitutionality of independent counsel's that came to be recognized as the better outcome. A better outcome that ultimately was evidenced by Congress, allowing the law that had been so abused to expire.

It was my pleasure on several occasions as the Dean of a law school to host Antonin Scalia for lectures and other conversations. In these circumstances, one was never disappointed in the give-and-take, or the wit, or the spontaneity for which justice Scalia is thought and will long be remembered. He could be a moody man insisting that the clicks of the camera stopped before he spoke, but he was always a fair man, and one who recognized that the best way for the law to be fair was for it to be applied in an honest and open and accountable fashion.

While his temper as he aged might be said to have grown short, his contribution to the jurisprudence of the court was ample and no litigant or court watcher was ever shortchanged. Those who were his acolytes, and there are many, and those who were his counterpoints, will miss him with equal intensity. Anyone who knew him, as I did, will miss the essence of a man who was brave enough to speak his mind with clarity, if not in every case, charity. It was not that Antonin Scalia was not a charitable man. I am certain in his abundant family and with friends, he most certainly was. But being charitable on the bench? "No," Scalia would likely say, "not his job." His role was to give fair reading to the laws enacted by "we the people" whether we were charitable or not. In this, Scalia never enfeebled democracy, he vindicated it.

Now what?

The first thing that is true is that President Obama will not wait for a new president to be elected, Why should he? Some point to Republican edge in the Senate, but they are forgetting that if needed, Obama pursuant to recent precedent can recess appoint. The fact that the vacancy arose before the recess does not matter. Ironically, this was the view of Antonin Scalia who supported the judgment of the more liberal Justice Breyer over the dissenters (Roberts, Thomas and Alito) with whom Justice Scalia was rather consistently aligned.

Who might be on the short list?

Here, the president has a shrewd choice to make. Obviously, he will want to influence the long-time direction of the court, and with this third appointment to the high bench, Obama has that capacity. Replacing Scalia with even a slightly more liberal jurist is huuuge, as Bernie might say, since the Court with Scalia had a 5-4 conservative edge. Obama gets to flip that and in so doing can take a good deal of anxiety away from primarily Democratic voters -- e.g., less likely the Court will substantially cut back on abortion or health care or legislation designed to meet economic inequality. On the surface this looks like a democratic advantage, but wait -- could it make the choice of Clinton or Sanders less consequential? Not really, but there is now a risk of a touch of complacency if a progressive is appointed.

The Republican side is different. Losing the slim Court majority requires really thinking through whether conservatives can afford to put prospective vacancies of the also aging Breyer and Ginsburg into the hands of Donald Trump. While Ted Cruz as a one-time court advocate would clearly run circles around the Donald on the implications of Supreme Court opinion on free market/climate change regulation (recently enjoined by the Court) and religious freedom to mention two topics. Kasich and Rubio lose out on making the Court issue a difference for them, but it can be a bit of a minefield if they shoot from the hip.

Obama as selfie?

Mrs. Clinton had mildly suggested that a President Hillary Clinton would think highly of a Justice Obama. The mere thought runs cooties up the spine of the right, but could Obama make a self-nomination? Aside from the vainglory of it all, there is nothing in the Constitutional text to preclude it. It is said President William H. Taft had appointed the sickly Edward White to the Chief's spot anticipating that it would then be available to him, and that's pretty much what led to Chief Justice Taft. But if a self-nominated Obama is too much to bear or would cause voters to rethink party allegiance because it might reinforce the in-grown nature of the more traditional of the Democratic contenders and that specifically some see holding Mrs. Clinton's candidacy back. The President and Mrs. Clinton have not always seen eye to eye, but she is his principal defender in the campaign, and the President is not about to undercut his own legacy.

Justice Biden?

Joe Biden is another question. Having decided against running against Mrs. Clinton and Bernie Sanders, the vice president carried the Democratic cause for many years in the Judiciary Committee; he has good friends from those years and the VP might have enough friends to secure the seat without rancorous debate over the vacancy takes the campaign down unpredictable paths. Justice Biden could well be sitting pretty on the bench -- a fact that will calm the fears of either Sanders or Clinton supporters who worry that a divisive, but ultimately, indecisive primary contest would replicate nationally the too close to call victory of Mrs. Clinton in Iowa. Safely enrobing Joe on the high bench keeps his lurking possibility as a party savior under wraps.