The Politics of Antonin Scalia

Justice Scalia & Bryan Garner Book Talk and Signing
Justice Scalia & Bryan Garner Book Talk and Signing

Antonin Scalia was one of the most influential and consequential justices in the history of the U.S. Supreme Court. Appointed by President Ronald Reagan in 1986, he was the intellectual anchor for today's conservative movement. His sudden death was a shock to all Americans, especially Republicans, who immediately assumed their battle positions.

The U.S. Constitution specifies (Article II, Section 2) that the president, "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." Certainly a strict constitutional originalist like Scalia would have agreed that a president with eleven months left in office has the right to nominate someone for the Supreme Court.

Shortly after word of Scalia's death, Senate Majority Leader Mitch McConnell, who decides what the Senate takes up, said in a statement that President Barack Obama should not nominate a replacement. "The American people‎ should have a voice in the selection of their next Supreme Court Justice," he said. "Therefore, this vacancy should not be filled until we have a new President."

This unprecedented message was followed by similar warnings from Republican presidential candidates. Texas Senator Ted Cruz took to Twitter, saying, "Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement." Florida Senator Marco Rubio also said Obama should not nominate a replacement. "The next president must nominate a justice who will continue Justice Scalia's unwavering belief in the founding principles that we hold dear," he said in a statement.

Justice Scalia's death dominated the early portion of Saturday's Republican debate in South Carolina. Minutes before the debate, which aired on CBS, President Obama expressed his condolences to Scalia's family while praising the jurist's "remarkable" life. Then the president said, "I plan to fulfill my constitutional responsibilities to nominate a successor in -- due time." He continued, "There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote."

The president's comments were fuel for an over-heated and feisty debate atmosphere. Donald Trump warned Senate Republicans to "delay, delay, delay." Cruz said that, "the Senate needs to stand strong and say we're not going to give up the Supreme Court for a generation." Former Florida Governor Jeb Bush called for a "consensus pick," which would be almost impossible to find with a deeply divided Congress.

Republicans feel they own the Scalia court position. Their comments and actions are consistent with the partisan war they have been waging in Washington from the day President Obama was first sworn in to office. For nearly eight years now the first instinct for Republicans in Congress has been to obstruct, block and divide. This, no doubt, plays well with certain segments of the Republican Party. But such tactics have demoralized much of the electorate and have probably led to the rise of Donald Trump.

Why didn't McConnell simply say that should the president offer a nomination, as is his right under the Constitution, the Senate would take it up? After all, the same American people who McConnell says should have a voice twice overwhelmingly re-elected President Obama to office. Furthermore, the Constitution does not say the president shall appoint unless he has less than a year left in office.

Republicans would be far wiser to agree to let the process take its course and then focus their attention on defeating the president's nominee in the Senate. This is what the Founding Fathers had in mind when they wrote the rules.

What an appropriate way this would be for Republicans to remember the man who they consider to be the greatest defender of the U.S. Constitution.