On the Death of Supreme Court Justice Antonin Scalia

Supreme Court Justice Antonin Scalia died last weekend in Marfa, Texas. I can't say I ever cared much for Scalia’s judicial philosophies, at least as he revealed them from his decisions and commentary from the bench. That said, he served his country with distinction, and it is with regret that we mark his passing.

It is a sad commentary on the state of our nation that a person who has served his country so honorably has his untimely death overlooked, in mere moments, in order to focus on the political implications of his demise. It isn't only pundits who leapt into the political fray at the announcement of Scalia’s passing - it was presidential candidates of both parties, and leaders of our political houses in Washington. One would hope that even 24 hours could have passed before the scrambling for the man’s seat commenced. In particular, Sens. Mitch McConnell and Ted Cruz are, in my view, among the worst practitioners of the political opportunism this turn of events offers.

Sen. McConnell, in his role as Senate majority leader, will obviously have a great deal of influence over who ultimately replaces Scalia on the bench. However, his initial comment was "the American people should have a voice in the selection of the next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”

This is a rather self-serving analysis of the circumstances. After all, the president is the president, and with that office comes the ability to select Supreme Court nominees. That authority resides with the president until the day he leaves office. The Constitution does not obligate a lame duck or outgoing president to abandon this responsibility during their final weeks or months in office.

Since 1900, there is not any instance of a president declining to nominate or the senate failing to consider a nominee in a presidential election year simply because of the impending election. In fact, since that time, there have been a number of election year nominees from both parties. In 1912, President William Taft (a Republican) nominated and the Senate confirmed Joseph Lamar to the Court. Democrat Woodrow Wilson made two nominations in 1916: Louis Brandeis and John Clark. Republican Herbert Hoover nominated Benjamin Cardozo to succeed Oliver Wendell Holmes in 1932. FDR nominated Frank Murphy in 1940, and Ronald Reagan successfully navigated Anthony Kennedy through the Senate in 1988 (although Kennedy was actually appointed in late 1987). It is also worth noting that like every other Republican Senator, Sen. McConnell voted for Kennedy in 1988, his deeply-held disdain for election year nominees being well-disguised at that time.

Some have pointed to what is known as the “Thurmond Rule” as a rationale for blocking election year appointees. Sen. Strom Thurmond utilized that argument, among others, to oppose the elevation of Justice Abe Fortas to the role of Chief Justice in 1968, LBJ’s last year in office. However, Fortas was already serving on the bench, not being nominated to fill a vacancy. And, ultimately, sitting Chief Justice Earl Warren decided to stay on the bench, resolving the need to elevate Fortas, who was being opposed for ethical breaches and philosophical reasons as well as election year politics.

It is important to remember that the Senate needs to offer no particular rationale for not confirming an appointee. They can object to the nominee’s politics, any perceived ethical lapses, their judicial philosophy, professional qualifications, a lack of diversity – even just for spite. However, there is no basis, precedential or otherwise, for the Senate leadership to ask a sitting president not to appoint a nominee merely because it is an election year. Clearly, that authority resides with the president, no matter who he or she may be, and no matter how much you may disagree with their politics.

Slow-playing nominees for an extended period is certainly possible, but it may be tough to pull off. The longest number of days from nomination to a final vote was 180 days for Robert Bork, Reagan's appointee who was ultimately not confirmed. The average is more like 67 days. The longest recent delay was the most recent appointee, Elena Kagan, taking 87 days, and the shortest being John Roberts, taking only 23.

Sen. Cruz’s commentary is, predictably, more inflammatory, and somewhat more perplexing, coming from a self-described constitutional scholar. Sen. Cruz acknowledged during Saturday night’s GOP debate that he was incorrect in saying that there was an eighty-year history of not confirming justices in an election year. Of course, he was already on record in saying that no new justice should be put forth until after the new president is sworn in.

Sen. Cruz has a history of making provocative statements about the Supreme Court during his run for the presidency. He described the recent rulings on same-sex marriage and Obamacare as "the very definition of tyranny." He is quoted as saying we are "one justice away from the Supreme Court concluding that nobody in this room and no American has an individual right to keep and bear arms. We are one justice away from the Supreme Court's striking down every restriction on abortion, and mandating unlimited abortion upon demand, up until the time of birth, partial-birth, with taxpayer funding, and no parental notification whatsoever."

Of course, this is preposterous hyperbole. It is somewhat alarming, or should be, that a presidential candidate so close to securing the nomination of his or her party would make such statements publicly. You wonder if Sen. Cruz really believes this, or is merely playing to his audience. I sincerely hope it is the latter.

Sen. Cruz has also been on record for some time that Supreme Court justices ought to have term limits, and be subject to impeachment. "What a crazy system to have the most important issues of our day decided by unelected lawyers,” he has said. Sen. Cruz has long been characterized as a constitutionalist, but I am forced to ask, how can a stalwart supporter of the Constitution call themselves such while simultaneously rejecting elements of the Constitution that are so central to our form of government?

It seems unfathomable that our founding fathers did not intend for the Supreme Court to serve as a check on the power of the presidency and of the Congress. Our government was always meant to be a three-legged stool, designed to keep each of the individual branches from running amok, in large part out of fear of domination by popular majority. It is at the core of our founding principles, and it is surprising that a self-described constitutional scholar could be so critical of it. Senator Cruz may not like what the Court decides, but the right to decide it is part of the bedrock of our Constitution.

There has also been a fair amount of discussion about what will happen during the remainder of the current Court’s term. Some have suggested that in the case of a tie SCOTUS vote, the decisions of the lower court would be upheld, and that the Supreme Court has, in those instances, traditionally not issued an opinion. However, SCOTUSBLOG suggests there is a historical precedent for the Court to order cases to be re-argued once the new justice is confirmed. There have been several recent examples of re-argument instead of upholding the prior decision in cases where a vacancy was filled during a Court’s term. For example, Justice Clarence Thomas joined the Court in 1991 and the Court heard re-arguments in two cases. Justice Kennedy joined the Court in 1988 and four cases were re-argued.

The current Court is facing a number of significant cases that could have long-term ramifications on existing law, and it is noteworthy that several of the cases are from Texas. One pertains to the 2013 Texas law that some argue ultimately shut down more than half of the state’s abortion clinics. Another is a Texas case challenging President Obama’s 2014 executive action on immigration. A third Texas case considers whether or not all residents should be counted when drawing state legislative districts, or whether that number should include only eligible voters (perhaps to exclude convicted felons, immigrants that are not citizens, and children, among others). And, of course, there is the case challenging to University of Texas’ use of affirmative action in admissions.

The Court has important work to do in the days and weeks ahead. The president’s and the Senate’s roles in this process were envisioned to be the functions of governance, not politics. Let’s all get to down to business, the business of governing, and let the politics take care of itself.