Supreme Court Justice Antonin Scalia’s recent death sent shock waves through the nation and started a political scramble to find his replacement — and arguments as to which president should do the replacing.
Scalia, who was just the third active justice to die in the last 60 years, was the longest-serving justice on the current court. Appointed by President Ronald Reagan in 1986, Scalia was considered a brilliant conservative legal theorist and was well-known for his biting wit. Perhaps most surprisingly, though, Scalia was a loyal friend — especially to ideological opposites Justices Ruth Ginsburg and Elena Kagan. People, pundits and politicians across the country genuinely mourned his loss.
But Scalia’s death opens a coveted vacancy on the court, the third such vacancy in President Obama’s eight years. More importantly, this gives Obama and his fellow Democrats the chance to change the ideological balance of the court from slightly conservative to decidedly liberal.
Kyle Campbell’s column Sunday describes the potential for a bitter, protracted nominations process. If you need a more concrete example, hark back to Reagan’s rejected nomination in 1987 of Robert Bork, vehemently opposed by Democratic congressmen and liberals alike for 114 days in the second-most drawn-out nomination process in American history. The result? A very moderate conservative in Anthony Kennedy, whom Reagan ended up nominating in 1988.
If Obama wanted to emulate the “Compromise of 1988,” he’d nominate Sri Srinivasan, who is considered a moderate liberal and is highly respected, especially for being just 48 years old. He was confirmed by a Republican-controlled Senate to the D.C. Court of Appeals by a vote of 97-0. The potential for a historic (Srinivasan would be the first Indian-American justice) and a long-lasting appointment combined with a lessened chance of significant opposition makes him very appealing.
This process wouldn’t be easy, but it would ensure a full court without completely dividing the country. Otherwise, expect a monthslong battle featuring a filibuster, vicious speeches and general chaos, much like what occurred in 1987.
Regardless of whom Congress ends up appointing to the Supreme Court, Scalia’s death is a severe blow for all Americans, especially conservatives who regarded the court as one last check on federal power. He was a firm believer in minimizing the court system’s role in American politics, often telling critics to democratically “pass a law” in the legislature.
As a more originalist or textualist interpreter of the Constitution, he routinely dissented from decisions giving people undeclared rights or legislatures new, undefined powers. You don’t have to agree with some or any of his opinions to recognize his dedication to the law. Indeed, Ginsburg herself has acknowledged Scalia’s help in strengthening her own opinions — ones he vehemently opposed.
For conservatives, Scalia’s death means a court more open to expanding government power in all but a few areas. Scalia helped author recent famous decisions like District of Columbia v. Heller (preserving the Second Amendment) and Citizens United v. Federal Election Commission (preserving free speech in elections). But over the course of his career, Scalia was a decisive voice in 342 Court decisions, according to The Supreme Court Database. In 284 of these, he took the “conservative” side. And though we often focus on these very divisive cases, Scalia and his fellow justices agreed far more often than not.
More importantly, he wrote insightful opinions whether in decision, concurrence or dissent, and he did it more often than his colleagues. His legal defenses and his very distinctive writing style will certainly be used for decades by law students, lower court judges and the court itself.
Scalia was committed to the Constitution and dedicated to limiting the ever-expanding power of the courts. As he once said about legislating, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.” He was simply a dedicated jurist — maybe sometimes a sharp contrarian, by his own admission — but ultimately, like his friend Ginsburg, committed to interpreting the law and providing guidance for legal theorists.
But maybe the best way to describe Scalia’s character are his quiet thoughts on what it takes to be a good judge: “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach.” But if you find yourself always liking them, he continues, “you’re probably doing something wrong.” His death was a loss for all of us, but he certainly won’t be forgotten. And something tells me that the devout Catholic justice is still arguing with St. Peter at the pearly gates.
Matt Dragonette, opinion editor, is a senior finance and government and politics major. He can be reached at mdragonettedbk@gmail.com.
