Justice Antonin Scalia’s pivotal, powerful judicial career mirrored his love of opera and grand spectacle. One of the nation’s most influential legal actors, he famously led the Supreme Court in oral arguments, while his fiery writings illustrated society’s divides. He never passed up a stage that would let him rhapsodize about his views on the limited role of judges.
His passing this weekend will keep him as forceful in death as he was in life. The selection of his successor immediately and unfortunately devolved into political drama, making November’s election into a referendum on all three branches of government. The melodrama threatens to undermine and further politicize the Supreme Court.
The legacy of Scalia’s original ideas and intellect in jurisprudence is consequential. He was the most politically conservative justice in the last three decades. His radical idea was that the Constitution’s meaning is found in its text. He rejected interpreting it as a living, breathing document that could be adapted to changing times. At the core of his reasoning was the fear that unelected judges would have too much power in a democracy, so he crafted a theory to minimize the instincts of judges to follow their political views. But there were many times when he was not faithful to his doctrine, especially on issues of race and gender when they clashed with his personal beliefs.
Scalia was a hero to conservatives. Yet, his specific successes on the court over three decades were modest. He wrote few majority opinions, even when he was on the winning side, because he wouldn’t compromise on the intellectual underpinnings of decisions. Asked about his judicial victories on the court, he said, “Damn few.” He was not a consensus builder. Iconoclasts never are.
Ironically, Scalia’s insistence that the text of the Constitution is all that matters seems to have been lost among those adamant about stopping confirmation of a new justice this year. Article II of the Constitution says the president shall appoint Supreme Court justices with the consent of the Senate. It’s pretty clear.
However, Senate Majority Leader Mitch McConnell said President Barack Obama can’t make a lifetime appointment with 11 months left in his term. McConnell said the 2016 election should be a referendum on the judicial philosophy of the next justice. That’s wrong. It’s purely political and clearly hypocritical. Politics always factors in the selection and confirmation of justices. It’s why the Founding Fathers created a system in which the two branches of government subject to the will of the public serve as a balance to the insularity of the judicial branch. The pressure is on Obama to find a confirmable justice. The Senate has the obligation to vote up or down on his nominee.
McConnell’s unprecedented edict is bad for the nation, and for Republicans. He’s maneuvering to keep his power and a GOP Senate majority. That majority could vanish with the turnover of five of the 24 Republican Senate seats up in November. If a Ted Cruz-inspired obstruction tilts the Senate to Democratic control, and if Democrats also win the White House, conservatives will be a minority on the court for generations.
There is no clearer intent of the meaning of the Constitution when it comes to judicial appointments. Scalia, who loved a fight, would have relished the battle over this nomination, but he would have demanded it be fought. To subvert the process dishonors the very legacy his admirers seek to praise.— The editorial board