Antonin Scalia, May We Find His Jurisprudence Peer Someday

Justice Antonin Scalia

Like many conservatives (and liberals too!), I was saddened to learn of the sudden and unexpected death of Associate Supreme Court Justice Antonin Scalia over the weekend. The accolades and the tributes for him will go on for some time, I suspect. He is being widely lauded as the finest writer, legal mind and staunch defender of the originalist point of view when it comes to interpreting the Constitution that the Court may have ever seen. Finding his peer to replace him will be difficult. He has served longer than anyone else on the current Court.

The news had barely broken before the political wrangling had begun, including the opening moments of silence followed by "thermonuclear war" among the combatants at the latest Republican debate last Saturday night. Even before the ink was dry on the story of Scalia's death, President Obama signaled his determination to move ahead with his nomination "in due time."

In the one corner you have the liberals, who would love nothing more than putting forward yet another progressive judge through the nominating process President Obama will no doubt undertake at his earliest opportunity to cement his legacy in place.

In the opposing corner you have Senate majority leader, Mitch McConnell (R-KY), who immediately put out a press statement indicating the nomination belongs to the next president of the United States, and not the current lame duck one. McConnell's argument is certainly valid based on history.

Whoever Obama nominates, the smart money says it's dead on arrival. Anything less than a strict constructionist like Scalia will most certainly tilt the Court in favor of judicial activism. We've already witnessed that unlikely phenomenon with Chief Justice John Roberts surprising everyone by steering the Court with his majority opinions when Obamacare was upheld first, then the legalization of gay marriage.

It is not political hyperbole to state the intensity of this election season has shifted into high gear. While mildly entertaining until now, what with an avowed Communist Bernie Sanders challenging Hillary Clinton, who is almost certainly guilty of felonies over her e-mail handling while Secretary of State (but not likely to face any jail time), and billionaire Donald Trump continuing to suck all the oxygen out of the Republican nominating process, the tone of the debate will likely change where all three branches of government - the executive, the judiciary and the legislative - will all be involved.

Of course, few would doubt the ongoing dominance of the Republicans in maintaining control of both houses of the legislative branch (but even that is always an open question). The political divide over what will happen in debates over this POTUS nominating process will be epic, but not unheard of in the past. That said, we will see the Senate's role looming larger than ever in the coming months leading up to the election. Unless the Republicans close ranks and refuse to act on President Obama's nomination, the makeup of a new Court before the election would undoubtedly compromise the historical precedents of waiting to fill the post until after the election.

Let's look at the facts as they exist under the Constitution:

There is ample precedent in our past history on the side of those who advocate waiting until the next president is selected. Article 2, Section 2, Clause 2 of the United States Constitution, the so-called "Appointments Clause," allows a president to appoint specified public officials only with the “advice and consent” of the Senate, and the key word here is "consent." Though he may try to make this appointment on his own as a "recess appointment" when the Senate is not in session, he would exceed his authority in attempting it. Only the Senate may ultimately confirm the president's nominee to serve as a Supreme Court Justice.

Historically, it has almost universally been the case that the closer we get to the end of a president's term, the more a delay has been viewed favorably. I read this morning that from President John Tyler forward, we have seen sometimes extended delays in filling vacancies on the Supreme Court. We think the country is deeply divided now, but probably no more than it was in Tyler's time. The same conditions certainly are in place today.

There are a number of practical reasons for delay, not the least of which is giving the American voters one more chance in getting it right. The crux of the Roberts' majority opinion in upholding Obamacare was in essence, "Don't look to the Court to bail you out, America, when you make poor political choices." He was concerned about the Court not being politicized, but his rulings may have done exactly what he did not intend. Perhaps by waiting for the next president to be chosen, American voters will respect the Court more and the new president's choice for the Supreme Court will be more widely embraced by the majority, assuming the Senate majority remains in the same hands as the new president's. At least that is the most optimistic view of the matter.

In my extensive reading this morning, someone even suggested if the new president were a woman (let's hope it isn't THAT woman), by putting forward a nominee now Obama would preempt her preference. If the next president were a strict constructionist like Scalia, then that new president should have the right to put forward a nominee more in the vein of Scalia. All of that in my mind suggests that Ted Cruz or Marco Rubio would undoubtedly be more reliable choices certainly than Hillary Clinton. Who knows for sure what a President Donald J. Trump or a President Bernie Sanders would do? If for no other reason, undertaking a deliberative and thorough search for finding the peer of Justice Scalia is worthwhile and should not be rushed. We've had ample precedents for waiting longer than a year.

It would certainly be in keeping with Obama's nature to try to ram through a first-ever recess appointment, but he would likely run head-long into a legal wall of his own making that has held such appointments cannot be upheld without Senate consent.

Supreme Court Building, Washington D.C.

I'm remembering this morning that there was a 2014 decision in National Labor Relations Board v. Noel Canning, where the SCOTUS, led by Scalia's brilliant writing in concurrence, ruled against recess appointments. It wasn't even a close vote (9-0), where they struck down three of the president’s recess appointments. In essence the high Court ruled them unconstitutional. Those appointments were attempted by Obama during a "pro forma congressional break" of only three days.

Talk about prescient irony, it was Scalia himself who wrote what some dubbed a “withering” concurrence opinion, when he warned against transgressing against the text of the U.S. Constitution. Scalia vigorously stated: “The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” and be believed the real intent of the Founders was to limit, not allow recess appointments beyond what they had intended.

Bristling at the sudden and arbitrary "10-day" recess invention attempted by Justice Breyer in the majority decision, Scalia added: “A self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court - in other words, the sort of practice on which the majority relies in this case - does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.” His biting accuracy will be missed.

My hope for our country is that we will find Scalia's peer in Constitutional integrity somewhere in this country. I am not one who is horrified at the thought of losing the Republic over this latest development, however. Scalia's death came out of left field and was surprising, when easily two or three other "expected" deaths might soon occur in the next few years, adding even more slots to fill on the SCOTUS, and raising the presidential sweepstakes to an even higher level. Remember, elections have consequences, as President Obama was so fond of reminding us all.

In sum: There is no precedent for taking this pending nomination out of the hands of the next president after the election of November 2016. Neither is there any legal foundation upon which a recess appointment could be justified.

I've used the word "precedent" a lot in this post. But my final word is that if the election season of 2016 has taught us anything, it is that relying upon historical precedents is shaky ground at best.