Replacing Justice Scalia

US Supreme Court Justice Antonin Scalia passed away this past weekend. Justice Scalia was a towering figure in American jurisprudence. He was perhaps the most eloquent and persuasive voice arguing for Constitutional originalism; for the idea that judges should base decisions on the best clear reading of the original Constitutional text, and not on their own social or political views. Scalia’s views resist the idea of the Constitution as a ‘living, breathing, evolving’ text, which is otherwise a fairly mainstream one. I don’t think that Justice Scalia’s philosophy of jurisprudence is particularly achievable; I do think that American jurisprudence thrives in an atmosphere of debate and open dialogue between partisans of various persuasions. It does not surprise me that Justice Ruth Bader Ginsburg treasured her friendship with Justice Scalia; their frequent clashes sharpened the thinking and refined the rhetoric of them both.

And Scalia could write. His writing (particularly in his dissents) was masterful, filled with trenchant commentary and wit. He will be missed.

And, of course, he does need to be replaced. And the Constitution makes it clear that the President of the United States is charged with nominating new Justices, with the advice and consent of the Senate. Which means a straight up and down vote, following (nowadays), hearings by the Senate Judiciary committee.

It’s an election year. But it’s early; today is February 16. Assuming that the President names a replacement within the next couple of weeks, the Senate would have plenty of time to hold their hearings and schedule a vote. The notion, first floated by Ted Cruz and Mitch McConnell, that it’s somehow improper or unseemly for this President to make this nomination is preposterous on the face of it. Justice Scalia spent his professional life defending the idea of Constitutional originalism. The idea that the American people, in the next election, should make this call, is nonsense. The American people have already decided who should replace Scalia. When they elected President Obama in 2012.

Except, of course, this is Scalia, and this is Obama. It’s safe to say that for most conservatives, Scalia is the model Justice, the very epitome of the person and philosophy they want on the court. And, astonishingly, President Obama is, um, not liked by conservatives. The idea of Obama (boo!) naming Scalia’s replacement is anathema to conservatives. There’s no precedent for it, but I don’t expect Republicans to budge on this. President Obama will make his nomination. And, as Donald Trump put in the last Republican debate, the Senate will “delay, delay, delay.”

And let’s be honest; if this nomination was being made by President Romney, and if the Justice being replaced was Justice Ginsburg, and if the Senate was controlled by Democrats, the result would be the same. The partisan divide is never wider than it is in regards to SCOTUS. We’re talking a life-time appointment. It’s great fun for Democrats to shout and gesticulate wildly over the appalling hypocrisy of Republicans over this (non-)vote. It was just as much fun when Democrats in the Senate were protesting appointments to the federal bench by George W. Bush. This is politics. Expect elbows to be thrown.

Which means that 5-4 decisions are suddenly going to become 4-4 decisions, with all sorts of unintended consequences.

For one thing: Bob McDonnell is going to jail.

McDonnell was governor of Virginia, until 2014, when he was convicted on 11 corruption charges. He was supposed to report to federal prison sometime in the next couple of weeks. However, a month ago, SCOTUS agreed to hear his appeal of his case, and granted a stay. There were, apparently, interesting questions regarding what might be regarded as routine exchanges of political favors, and what might be regarded as bribes. Justice Scalia was seen as particularly receptive to the arguments made in McDonnell’s defense, and a 5-4 decision, reversing McDonnell’s conviction, seemed at least possible, if not actually kind of likely.

Not anymore. It’s going to be 4-4 now, and that means the lower court’s ruling stands. And that means Bob McDonnell is going to prison. Sucks for him.

That’s not the only consequence. In fact, as Rachel Maddow put it last night, McDonnell’s case is probably the least consequential result of Justice Scalia’s sad passing (and resulting Senatorial gridlock).

Maddow had Dahlia Lithwick–Slate’s legal correspondent–on her show last night, and together, they went over some of the high profile, really important cases the Court was going to be deciding this term, only probably not now. There are cases regarding affirmative action, abortion rights, an appeal reversing President Obama’s immigration policy, another Hobby Lobby case regarding religious liberty and contraception, a voting rights decision, and a decision about how states can draw legislative districts. Lithwick said she was certain that all the above cases would have been 5-4. Now, they’re 4-4, which means that lower court rulings can stand. And that’s a decidedly mixed bag.

For example, Texas has a particularly restrictive law restricting women’s access to abortion; outlawing certain clinics, for example. The Fifth District court ruled in favor of that Texas law; it’s entirely possible that SCOTUS would have overturned it. Other appellate courts have overturned similar laws. All those lower court rulings would be upheld if SCOTUS deadlocks 4-4. Which means that abortion laws would depend entirely on . . . geography.

As Lithwick put it last night: “You’re going to have an absolute patchwork across the country, where fundamental Constitutional questions do not get resolved. This is what the Court does!” Or not, until after next January, apparently, when the new President, whoever he or she is, has leisure to nominate someone else, and the new Senate has time to confirm. Or not.

Reluctantly, let’s speculate. Let’s suppose that President Obama nominates someone reasonable and maybe kind of moderate to the Court. One name that’s gotten a lot of attention is Sri Srinivasan. Son of immigrants from India, he clerked for Sandra Day O’Connor. He won confirmation to the DC Circuit Court, in 2013, by a vote of 97-0. He’s a very respected judge, seen as highly intelligent, a respected moderate. Republicans would look really foolish voting him down for SCOTUS, after just recently unanimously having confirmed him.

If Hillary Clinton or Bernie Sanders wins the general election in November, it seems like Senate Republicans might be receptive to the idea of confirming a guy like Srinivasan, if it looks like President Clinton/Sanders would nominate someone, like, I don’t know, Goodwin Liu (a California appellate judge, seen as more liberal) or Loretta Lynch, or (wait for it) a certain former law professor from Chicago, name of Barack Obama. A December lame-duck confirmation does not seem all that improbable, to head off that appalling possibility.

What I do not expect to see is anything done quickly. I suppose that Chief Justice Roberts might hold over some of the more contentious cases until a new Justice can be confirmed. But one thing does seem probable. We’re in for a big rancorous mess. Should be fun.


Leave a Reply