Wednesday, February 17, 2016

Justice Scalia's Death, The Empty Seat & Extremism

The times in which we live are chaotic ones, filled with rampant extremism. The fringes of the political spectrum are being pushed further and further out, becoming weighted down at the edges as more and more people claim alliance with what used to be outlying positions.

Moderate is a word that Americans don't much believe in these days, though there is an argument to be made that historically it has never been something we supported. The idea of reaching over an aisle, of compromise, of conceding a little bit, a shock to the conscience anymore. We've moved away from the notion that people can disagree and still work cohesively.

Instead, now everything is divisive. Everything.

Agree with me, or I'm taking my toys and going home.

Refuse to give me what I want, I'll hold the entire government hostage.

It's ironic in some ways that the political system has become this way, or at least that it has become more this way in the wake of the Citizens United decision - the one in which corporate "persons" gained the rights of individuals in the political process. That decision, one in which Justice Scalia concurred with the majority.

The post Citizens United world has driven politicians more urgently to the fringes out of necessity. The nature of social media and the immediacy of the internet has created a universe in which every single word uttered by a politician, every bill signed, every decision made is instantly available for consumption. Everything is analyzed time and time again, allegiances declared, statements nitpicked. During an election season, it's all magnified even more. The commercials on television, on radio, online, no longer limited in funding, rarely fact checked, always spun heavily towards the angle of whoever writes the checks.

As an example, although most people in this country are in favor of background checks to purchase guns, a good percentage of elected officials won't dare utter even the mildest suggestions because they'll immediately be attacked by the gun lobby.

If you aren't over there on the fringes, agreeing with everything the lobbies say, they'll eat you alive.

And it goes both ways.

Neither party is innocent here.

The will of the people has become increasingly irrelevant as the political process has been hijacked by the special interests with the deepest pockets, with the greatest ability to vilify anyone who disagrees with them.

This is the current political situation. These are the times in which we live.

And these are the times in which Justice Scalia died.

Justice Antonin Scalia
His seat now vacant, the consequences of that vacancy were felt immediately. Some of the cases the court was set to hear this year will deadlock. Some of the cases will be kicked back down to the lower court.

Within moments of his death being confirmed, there were some in the Senate already saying that they'd block any nominee that President Obama could put forth. Some who have said that the President has no place nominating someone to the court at this point in his term. Some who claim that the impending election is more important and the next President should get to choose the nominee, as if the fact that the current President was also elected is irrelevant.

There are over 300 days left in President Obama's term, almost the entire session of the court occurring between now and then. It is the President's duty under the Constitution to nominate justices to sit on the court. Whether or not the Senate will do their duty to conduct hearings and vote on that nominee is an entirely different issue, and within their rights to refuse, though that refusal itself will not be without consequence. Make no mistake about it, though; there is no precedent here for the President to simply refuse to nominate someone.

"It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don't do this in an election year."
~Ted Cruz

Senator Cruz would make a compelling argument if he was correct. The truth is, he's wrong.

In 1988, Justice Kennedy was confirmed in the last year of President Reagan's term.

The Thurmond Rule, one that you've likely heard cited as justification in the past few days, isn't actually a rule. Instead, it was a declaration made by well-documented segregationist Senator Strom Thurmond that no lifetime judicial appointments should be made in the last six months of a lame duck presidential term. There is nothing to support the legitimacy of this idea and it has been both claimed and rejected by members of both parties in the past.

President Obama has already stated that he intends to name a replacement soon.

Those who say they will block any nominee, those claiming to be defending the Constitution in Scalia's honor and absence don't actually understand that he'd want the seat filled, and he'd want it done in a timely manner so that the cases to be heard this session weren't jeopardized.

I may not have agreed with the majority of his decisions, but it would be impossible to claim that he didn't love the Constitution. He was, as I am, someone who studied the Constitution with a deep appreciation.

It would be unfair to say that he'd ever advocate obstructionism in his name. Quite the opposite would actually be true. He would urge the President to choose a nominee, he would urge the Senate to conduct their hearings in a fair and expedient manner. He wouldn't even necessarily want someone who allied with his views to be chosen as a replacement. He would want an intelligent and capable person to sit in that chair, and he might even have mentioned some possibilities if he were still here.

Though it may come as a shock to some people, Scalia actually expressed a desire to have Elena Kagan nominated to the court before she was chosen. She lined up on the polar opposite end of the spectrum from him when it came time for decisions, but he knew that she was a fair and capable judge who would fit well with the court.

Judges are supposed to be impartial. They are supposed to be fair. They are charged with interpreting laws, the Constitution being the most revered of them all.

Prior appointees have not always allied with the political views of the President who chose them, nor with the Senate who confirmed them, and that is how it should be. The judicial branch is not supposed to be a tool of the other two branches, but a separate and distinct branch of its own character and composition. This insistence that it should be beholden to the political will of whoever is in control at the moment betrays the intention of the founders. I'd make the argument that it would also go against everything Justice Scalia himself stood for.

There was once a time when the Justices of the Supreme Court, as judges and justices in general, were viewed as nonpolitical appointees, chosen because of their fairness and impartiality. There was a time when partisan bickering didn't shut down the government. There was a time when reaching over the aisle and compromise were commonplace.

Those times don't have to stay in the past.

There is nothing preventing Senators here from being reasonable, from holding adequate hearings, from voting their own conscience on the fate of whomever is chosen.

Nothing, except our political extremism, the extremism that threatens the very fabric of our country.

Many of those President Obama has selected to sit on lower courts have been approved unanimously. If he were to choose one of those previously unanimously approved justices, one with a non-controversial record on the bench, to sit on the highest court in the nation, what exactly would the justification for opposition be?

Is extremism enough of a reason to keep that seat empty?

I hope, with sincerity, that the Senators vowing to obstruct this necessary function in our government will rethink their decision. I hope that President Obama does his duty, and that they do theirs.

I also hope that they'll take Justice Scalia's words to heart when vowing, as part of their own campaigns, to obstruct the functions of the Supreme Court:

“Campaign promises are, by long democratic tradition, the least binding form of human commitment.”
~Antonin Scalia, Republican Party of Minnesota v. White (2002)


  1. Even ignoring the 80 year precedent of not appointing a judge for a lame duck president. The only reason that the Reagan appointment was so late was because the Democratic party set the tone for partisan politics, and prolonged the process. Also why no mention of 2007 when Senator Chuck schumer and Barak Obama did the same thing?

    1. I stated that both parties here are responsible for the extremism and partisanship.

  2. I agree with that, but I asked why it was OK in 2007 but not now?

    1. You are operating from a position where you assume I am condoning it, which I am not.

  3. In that case why can't it be tit for tat and not extremism, perhaps it's just a respect for an 80 year precedent. The problem I have with a lot of these arguments is it always seems so one sided, with no mention of the partisan ship from both sides.


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