Supreme Court justice Antonin Scalia passed away over the weekend. Probably more than anyone in a very long time, there was very little sadness over his passing, especially among liberals, who have demonized Scalia over the years for decisions that very often curtailed social progress. Liberals aren’t wrong to demonize Scalia, but he also got something of a bad rap, because he wasn’t a partisan Supreme Court justice. He was a textualist — he basically believed that the Constitution wasn’t a living, breathing document, but that every word should be taken literally. Typically, that meant leaving all of these social policies up to the state to decide. He didn’t believe the Court had a place in those decisions.
I do not agree with Scalia — in fact, I thought he was a stubborn asshole — but I respected his consistency. There was never a doubt about where he’d come down on an issue — you only had to read the Constitution — and among modern Supreme Court justices, there wasn’t a better, more engaging and entertaining writer. A good Scalia majority opinion or dissent improved the outlook on a lot of days in law school, because we could always count on a good turn of phrase, an amusing dig at his Supreme Court colleagues, and a healthy dose of rage. I never agreed with Scalia, but it was hard to argue with his legal reasoning, rooted as it was in a literal interpretation of the Constitution.
His death is a victory for social progress, but it’s a defeat for legal scholars, who won’t have the benefit of reading any more Scalia opinions (if you ask me, it was Chief Justice Rehnquist and now Justice Alito who are the real demons, because their opinions are often more partisan than academic).
Scalia’s death also opens up a huge can of worms for President Obama, adding yet another wrinkle to an already unusual and politically-charged election year. The bad news is that it seems unlikely that Obama will be able to get a new Supreme Court Justice confirmed by a Republican Senate before he leaves office, eleven months from now. The good news, at least for liberals, is that the Democrats can use the Republicans’ refusal to confirm a Justice as a political weapon. Not only can Democrats call foul for obstruction — Justice Scalia himself would no doubt want confirmation hearings to go forward, because that’s what the Constitution asks — but Obama can put a face to certain issues.
It may be cynical, but regardless of who wins between Bernie and Hillary, Obama could energize black voters by nominating a liberal African-American Supreme Court justice (and whoever Obama nominates will likely be confirmed under the next President, if it’s a Democrat). Democrats can also use the Supreme Court vacancy to highlight the importance of electing a Democrat in order to ensure that abortion rights are protected, that same-sex marriage remains legal, and that Obamacare remains intact.
Sure, Obama could nominate a moderate like Sri Srinivasan and he may even push him through. However, while someone like Loretta Lynch almost certainly wouldn’t be confirmed this year, her nomination could help the Democrats win the election in the fall.
Politically, it’s a very interesting dilemma, and personally, I’d rather Obama put forward a progressive nominee that would hopefully (fingers crossed) be confirmed under a Democratic successor than a moderate nominee that might be confirmed this year. We’re talking about the next 30 years, after all, so it’d be nice to have another liberal member rather than another swing vote on the Court.
However, Aaron Sorkin’s The West Wing also offers another possibility that could appease both Democrats and Republicans, alike. As you might recall from the season 5 episode “The Supremes” (unless you bailed after Sorkin left), President Bartlett also had to deal with the unexpected death of a Supreme Court justice.
Using some political maneuvering, Bartlett and his staff sought to scare Republicans by putting a very liberal Justice — who would never be confirmed — on the shortlist in order to appease Democrats but also smooth the way for a more moderate nominee to later sail through confirmation process in the Republican-controlled Senate.
What happened, however, was that Bartlett ended up loving the progressive — who had had an abortion in college — so he devised a way to get her on the court (or rather, Josh Lyman did). Basically, their plan was to convince a conservative member of the Court — who refused to retire because he didn’t want to be replaced by a liberal — to also resign, and Bartlett agreed to replace him with another conservative Justice if the Republican leadership would also approve of his progressive nominee. In other words, there was something for both sides.
Is this even possible in the current situation? Maybe. It’s theoretically possible that Obama could convince Clarence Thomas — who has basically voted however Scalia voted for his entire tenure — to resign after 25 years on the bench if Obama promised to replace him with a conservative. However, this scenario — with two conservative members being replaced by one liberal and one conservative — would tilt the Court to the left.
A more likely possibility is that Obama could convince Ruth Bader Ginsberg — a strong liberal and a close friend of Scalia, who also happens to be 82 years old and has survived two bouts of cancer — to resign, and Obama could promise to replace Scalia with a conservative and Ginsberg with a liberal. Basically, the political composition of the court would remain the same, with Anthony Kennedy continuing to decide every bloody close case.
That wouldn’t necessarily appease Democrats, but it would allow Obama to appoint the conservative member he wanted, and it would allow the court to maintain the status quo, in which abortion is still legal (although severely curtailed), same-sex marriage would not be overturned, and presumably, Obamacare would not be at any more risk of legal challenges.
Of course, that was a television show, and this is real-life politics, where reason and compromise are practically out of the question. It is, nevertheless, an interesting possibility.