The Senate should honor the legacy of Antonin Scalia by doing its Constitutional duty to confirm his replacement.
A signature of Antonin Scalia’s judicial philosophy was the interpretation of the U.S. Constitution based on the framers’ original meaning — an approach that influenced many legal scholars, including his colleagues on the Supreme Court. Jurisprudence based on “originalism” is not perfect, Scalia conceded — accurately. But he argued that it took judges out of the role of interpreting the Constitution based on the shifting social and political winds.
So it is disappointing that political winds might threaten the process to confirm his replacement after his death on Saturday.
This weekend, Senate Republican Majority Leader Mitch McConnell said the chamber would not confirm any nominee forwarded by President Obama, leaving it instead for Obama’s replacement.
The Senate Republican majority instead should honor Scalia’s legacy and reread Article II of his beloved Constitution. The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”
In picking Scalia’s replacement, Obama should replicate the qualities that made Scalia an indelible institution on the highest court.”
There is no mention of leaving an appointment vacant for political reasons. Thomas Jefferson and Scalia would’ve snapped their foreheads at the “delay, delay, delay” tactic endorsed by the leading GOP nominee for president, Donald Trump — which is itself a head-slapper of a phrase.
In picking Scalia’s replacement, Obama should replicate the qualities that made Scalia an indelible institution on the highest court. He was unequivocally brilliant, funny and eloquent. Justice Elena Kagan, then the dean of the Harvard Law School, admiringly described Scalia as “the justice who has had the most important impact over the years on how we think and talk about law.”
Scalia’s close and unlikely friend on the court, the more liberal Justice Ruth Bader Ginsburg, lovingly wrote that Scalia’s blistering dissents “gave me just what I needed to strengthen the majority opinion.”
The hyperpartisan milieu of Congress this election year must not thwart the framers’ intent. McConnell may be using delay as a negotiating tactic to encourage Obama to nominate a centrist.
But if the GOP majority truly intends to freeze a 4-4 split on the highest court through the presidential election, voters should take note. The Supreme Court’s Bush v. Gore ruling in the 2000 election was deeply flawed, but at least the court did its job and broke a logjam. Let’s hope it won’t have to reprise that role without a ninth justice.
When Obama delivers his nominee to the Senate, that chamber should do its job. Governance requires compromise — and an ability to read the Constitution.