Anthony Scalia’s death will have a profound impact on the already chaotic American political scene. His sudden passing has added to this stranger than fiction election season in what is turning out into a transformative time in American history. Almost immediately he has sent an already discombobulated Republican party into a vertiginous spin as manifested by GOP leader Mitch McConnell, who in indecent haste, warned the POTUS not to nominate another justice to replace him. This rushed statement was followed by the Republican Presidential candidates, tripping over each other in their desire to dish out gratuitous advice to Obama not to fulfill his role as President. No sooner had they all had their say there was backtracking by Republican Senators who were beginning to come to terms with the political ramifications of their standard bearers’ stance. One can understand the Republican anxiety as for practical purposes for some time their agenda’s only progress has arisen from Supreme Court rulings.
Scalia a right wing icon has been the centerpiece of the Conservative’s fifty year domination of the Supreme Court, lurking over it like a colossus. With his passing this Conservative bent is now in grave danger . A giant intellect who created a unique framework and philosophy upon which to base his judicial rulings . He brought the terms textualism and originalism into common usage in the legal and political worlds. The former meant that words in legislation were to be strictly adhered to in the application of the law. Originalism described the manner in which the Constitution should be understood - things meant what they mean, or at least what Scalia said they meant, on the day that they were written way back in 1789. To use his own description the Founding Fathers had created a “dead” document. It could not be reinterpreted into today’s world. Nor was the intent of the legislators, normally a very important parameter in law, considered relevant in judicial deliberations.
This is not the time or place to challenge Scalia’s framework other than to acknowledge that it had far reaching effects in his life and now in his death. In so doing to point out to that those that worship at his shrine should recognize that his judicial philosophy would have demanded that the President present to the Senate a nominee to fill the vacancy as clearly and unambiguously stated in The Constitution.
Associate Justice Scalia’s passing at this time will have a profound political impact in the forthcoming Presidential Race, the Senate elections and the immediate decisions pending in the current Supreme Court, (SCOTUS), session and therefore the philosophical direction this country will take. Just before delving into these outcomes it would be useful to briefly outline the role of the Supreme Court, how judges are elected and the pivotal role it plays in American life.
SCOTUS AND TODAY’S GOP
The Supreme Court is the final Judicial arbiter in the USA. It has the final say as to what is constitutional and what is not. It is a creation of the Founding Fathers who sort to separate powers between the executive, the legislature and the judiciary. It has had a major impact on the social fabric of society, has defined norms and decided what is legal and what is not. Bearing in mind this all embracing role they play, the manner in which its members are elected for life to this body is extremely random. If there is a vacancy on the court the sitting President nominates a candidate. Very occasionally the original nominee is withdrawn but ultimately, to date that is, the President always gets an associate Judge of his picking. So the fate and direction of the nation depends to a certain extent as to how many vacancies occur during a given President’s term. That President by picking young Judges can see to it that his political influence can continue for decades.
Historically, Judges have been, by and large, easily ratified by the Senate. Nowadays especially when the Senate represents a different party to that of the President the candidate is subjected to rigorous questioning. Justice Scalia a Reagan nominee was ratified by ninety - eight votes to none, by a Democratic Senate, in 1986. For fifty years even though there has been a Democratic President for twenty - two of those the GOP philosophy has held sway. All because of the roulette wheel manner that dictates SCOTUS appointments, This influence was ameliorated to a certain extent by “swing votes” for certain issues - Sandra Day O Conner and to a lesser extent the current Justice Kennedy. Never in the history of the court has there been a vacancy for a year nor has the Senate ever instructed the President not to put forward a nomination. Twenty - four times in the court’s history a President has in its final year nominated a justice, the last one being Ronald Reagan who nominated Justice Kennedy. It bears repeating that even when there have been rejections or withdrawals of nominees the President has always had a choice ratified.
So Mitch McConnoll GOP Senate leader and all the GOP Presidential Candidates’ injunctions to President Obama are both unconstitutional and unprecedented. Instructing Obama because he is in his last year of office not to appoint a successor to Scalia is so much self serving tripe. If anything all of this debate is indicative of the fear and uncertainty the GOP are feeling as its Party is ripped apart. In fact SCOTUS is the only hope for getting the Republican fundamentalist doctrine enacted and it becomes more and more apparent as the Party itself implodes and the SCOTUS can no longer be relied upon to deliver.
With Scalia’s death the halting of the Republican agenda has already started.
SCALIA’S DEATH WILL IMMEDIATELY ROLL BACK THE GOP CONSERVATIVE AGENDA
The Supreme Court is now deadlocked at four conservative votes to four liberal votes. The Conservative five to four majority is no longer. The current court had already decided at least five pivotal cases but had not announced the outcome. Precedent, oral argument and their subject matter are such that all court watchers are certain that they all would have been decided in terms of Scalia’s philosophy. With an absent Scalia his vote no longer counts so that the decisions will be deadlocked. What then is most likely to happen is that the ruling of the Appellate Circuit remains in place or the Supreme Court can leave its own precedent in place.
The first is a Californian Trade Union Case where the Court ruled that where a Union existed all employees were liable to pay Union dues as all benefited. It was confidently predicted that the Scalia court would have reversed this decision which would in practicality broken the power of the Unions throughout America as large numbers of employees could opt of paying Union dues. This will no longer happen and the Appellate support of the Union’s right will stand. Then there is an Affirmative action Case where a Texan University lost its right to use race as a factor in the admission process. With Justice Kagan having to recuse herself and Scalia having remarked in oral argument that African Americans do better in less prestigious Universities the outcome was a forgone conclusion - the disbandment of Affirmative Action in Universities. However the Supreme Court would have to change the law as their precedents supported Affirmative Action and they might be wary to do this with a seven Justice Court. There are two other cases that would have far reaching consequences where in the normal course of events on law alone the Supreme Court should reverse the Circuit Courts decision. With Scalia there it would be far less likely that they would overturn them. Both emanate from the highly conservative 5th Circuit Appeal Court in Texas. In one the decision extrapolates from the specific to shutting every abortion clinic in Texas and in the other the Fifth Circuit has ruled that Obama’s executive order on immigration should be forestalled across the whole country. In both these cases it has to be painfully obvious that the Regional Appellate Circuit Court has exceeded its authority.
So sans Scalia what amounts to the Republican political agenda, an agenda that they haven’t been able to effect legislatively, is in jeopardy. With their party being total disaray it is inconceivable that they would ever be able to effect any of this legislatively. O’Connell’s initial shotgun response to a potential liberal court becomes more and more understandable.
But the GOP has much to be thankful for Scalia’s legacy.
SCALIA’S LEGACY
Scalia weighed in on every possible issue on the Supreme Court. He asked more questions than any other Associate Judge in oral argument, wrote more concurring opinions and was in the top three in Judicial history in authoring dissenting arguments. He did not limit his influence to the court itself being a prolific lecturer in law schools and college campuses. He is best known for his strident opposition against abortion and only Sandra O’ Conner thwarted his objective to overturn Roe versus Wade. Similarly Justice Kennedy forestalled his desire to criminalize homosexual relationships. He believed that the death penalty was constitutional and had it reinstated but dissented on the court’s view that underage murderers should be exempted. His views on affirmative action were well known and he sort every opportunity to reverse it. He was against removing life support unless there was “clear and convincing evidence” that this was the wish of the patient.
There are a few cases among the hundreds that are more famously associated with him. Bush versus Gore is one. The latter is a seminal case where some still argue that the Supreme Court crossed the line by reversing a State’s Court ruling in an area where States have constitutional jurisdiction - voting. Scalia by his public pronouncements and justifications is the public face of this fateful ruling. His statements that people should “Just get over it, It is so old” and his rationalizations for not allowing an unanimous Florida Highest Court ruling to sanction a recount of the votes still ring loud in detractors’ ears - “We were the laughingstock of the world. The world's greatest democracy that couldn't conduct an election. We didn't know who our next president was going to be.” All these very non judicial remarks to justify his judicial decision.
Another landmark ruling was authored by him in 2008 in the District of Columbia versus Heller docket. There he categorically interpreted the Second Amendment to allow individuals to have firearms. This he did by stating that the term “militia” in 1789 meant the body of all citizens not just the legitimate armed forces. This decision unleashed an avalanche of gun purchases and a political debate that is still ongoing. More recently his advocacy in the Citizen’s United Case where the First Amendment was interpreted equating money with “free speech” opened the floodgates for the billions being spent now on political campaigns. Then his support of gutting the1965 Voter Suppression Act by ratifying Republican States’ legislation making it more difficult to vote is another societal changer. A notable dissenting vote by Antonin related to the Special Prosecutor Act. He correctly prophesied that such an appointee could run amuck with no limits or authority placed upon him. Ken Starr proved him right when the latter spent 80 million dollars on trying to prove malfeasance of the Clintons and all he netted was Monica which was not the subject of his investigation.
All in all Scalia has a legacy that has dominated the social and political scene for a quarter of a century and with his parting the five to four Conservative majority on SCOTUS is a memory and the political fall out is massive.
POLITICAL FALL OUT
It must be obvious now why Mitch McConnell and the Presidential candidates rushed onto the scene to attempt to stop history. It is equally obvious why, as the cold light of day dawns, that several key Republicans are reconsidering their options. The GOP head of the Senate Judicial Committee, which would initially vet a Presidential nomination for the bench, has indicated that maybe they should wait and see who President Obama nominates. In addition some Senators, particularly those in swing states have either said nothing or are hedging their bets.
Obama has clearly stated that he is going ahead with a highly qualified nomination and that the Senate needs to go ahead with either accepting or rejecting the candidate. Obama cannot lose. If they accept his choice then voila he has the majority on the court there and then if they don’t the court still is deadlocked and cannot continue on their conservative march. Then if his candidate is a high profile, well respected and well suited nominee the political fall out will be immense. If his candidate is rejected he then has the option of introducing yet another one to increase the opprobrium of yet another refusal. If let us say his first nominee is an African American and he or she is axed this will certainly mobilize that demographic and if he follows that up with an Asian American….
Then again he could pick one of the jurists who were recently unanimously ratified to the Appellate Courts by the Senate. There is one that is particularly significant, Judge Jane Kelly, who is from Senate Judicial Chairman Grassley's State of Iowa. Ms. Kelly, who has strong Republican connections, with Grassley’s support was elected to the Appellate Circuit Court with a vote of ninety - six to nothing. Obama, as reported by Newsmax, has canvassed Grassley and the latter has changed his tune from outright refusal to “taking one step at a time” and to “see who the nominee will be”. Then there is Loretta Lynch, the highly regarded African American prosecutor who currently heads the Justice Department. She had her appointment ratified by the Senate after an exhaustive process. The possibilities are endless. What would happen if he picked Colin Powell who is nominally a Republican?
Now if the GOP had any sense they would ratify Obama’s pick and move on but they can’t because their loose cannon presidential candidates that represent the party’s future are unified on only one issue and that is that Obama should jump in the lake. The rules don’t apply anymore and it is shoot from the mouth first. The biggest impact of this whole bohaai is going to be in the Senate races because this is the Senate’s responsibility. This cannot bode well for the GOP in the six marginal seats in the Senate. The pressure is only going to increase as more and more luminaries weigh in. Former, Supreme Court Judge Sandra O’ Connor, who is highly respected and was a Reagan pick, has already told the Senate to get on with it and allow the Court to function properly.
Most important for the Dems is that they are no longer dealing with an adversarial SCOTUS and if their following doesn’t screw up they will have the next few picks on the court as well.
So Scalia’s death is really a big deal.
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