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The loss of a judicial giant and the political wrangling in his wake

By Christopher Curran
Posted 2/24/16

Associate Justice of the United States Supreme Court, Antonin Scalia, has recently passed. Within moments of his demise, feral political pundits started to speculate on who might replace him, whether …

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The loss of a judicial giant and the political wrangling in his wake

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Associate Justice of the United States Supreme Court, Antonin Scalia, has recently passed. Within moments of his demise, feral political pundits started to speculate on who might replace him, whether President Obama should even offer a candidate this late in his term, and what effect the loss of this judicial giant might have on the upcoming election.

The lack of respect that was demonstrated by media wolverines, the Republican leader in the Senate, and presidential aspirants was reprehensible. Certainly, the discussion itself was appropriate once the funeral had occurred, for there are far-reaching decisions the great court is facing. However, taking stock of Scalia’s 30 years on the court, his shining service to our country, and his friendly and endearing demeanor, which he infused in every legal argument and in every interaction, would be a valuable lessen for others who aspire to serve our nation at the highest level.

In the last three decades, Scalia offered majority opinions, dissents, and appropriate recusals to some of the more important judicial issues that we have faced. His effervescent manner and assurance of attitude often dominated the question-and-answer portions of any review before the court.

With the 2016 court’s calendar replete with vital issues and now a potential 4-4 ideological deadlock looming in the voting, the matter of who should be nominated and by whom and when is actively being debated.

In this election year, our Supreme Court cannot avoid the political stain of forceful ideologues that would prefer the politically malleable to the deliberative as the next justice of the court.

The candidates for president have urgently stated what issues they would like the court to address in the hope of influencing the filling of the vacancy.

The significance of the passing of any justice is of course whether or not the vacant seat can be filled by someone who might reflect the political ideology of the current occupant of the White House. This manner of thinking although historically common is wrong-headed. The president should be searching not for a brother or sister in ideology but rather a constitutionalist who analyzes our bedrock document not as a living organism but as a foundation of original intent.

Antonin Scalia was such a jurist. Often called an “originalist” and a “textualist” and a strict constructionist, Scalia contemplated the intent of the law or statute at the time and in the context it was written. For example, he perceived the 14th Amendment in the context of what it meant in 1868 as it was written in the parlance and intent of that period. Equal power and rights to anyone born in our country seems straightforward. However, being one of the three Reconstruction amendments, Scalia would view the amendment in the voice of that day not in how we may perceive in light of current social events. He would not extrapolate the meaning of the amendment to justify affirmative action, as other jurists have.

Similarly, in regard to the Second Amendment, Scalia regarded the right of self-protection in the context of that era along with the protection of one’s property against foreign or domestic invaders. Where some of the more “the constitution is a living organism” paradigm-wielding justices like Elena Kagan and Sonia Sotomayor believe the Second Amendment may be anachronistic in its current application and one should perceive the amendment by today’s standards. Kagan and Sotomayor believe today’s gun violence should affect the prism in which we view the original intent. Thus, these justices feel freer to restrict or modify the amendment. That sentiment is antithetical to Scalia’s correct manner of evaluating law.

Scalia was mistakenly referred to frequently by the fourth estate as a political rightist. Although he was more conservative in his decisions, Jewish scholar J.J. Goldberg more aptly called him the “intellectual anchor of the court’s conservative majority.” His conservatism was more related to his strict reading of the constitution rather than executing a political agenda. The political ramifications of his opinions were incidental to his evaluations.

Therein lay the greatest intrinsic value in Scalia’s opinions. He was not compelled by an activist’s passion, but instead by an intellectualism and respect for the original framers of our country and the original authors of the Constitution and its amendments.

That respect was not found in the pundits who immediately after the news of Scalia’s death started a dialogue on who Obama should recommend and how the issues before this year’s court could be affected by a liberal gaining the now vacant seat. The president himself not long after stated he had a responsibility to offer a nominee, but he would wait a little while to choose a candidate out of respect for Scalia. His insincerity was conspicuous.

Sadly, the Republicans did not wait an appropriate amount of time to start carping about the administration’s intentions. Senate Republican Leader Mitch McConnell stated that due to the lateness in the president’s term and the current ongoing election year, Obama should not propose a replacement.

First, constitutionally speaking, the president does have a responsibility to present a candidate. Whether or not the Republican majority Senate will ever vote favorably for another Obama nominee is questionable.

The likelihood is that Obama’s choice will be similar to the far-left Kagan and Sotomayor. So the politicization of practically everything would taint the process. A partisan imbroglio would erupt and permeate the press coverage for weeks. The election would take a back seat to a confirmation that would never come to fruition. If the former constitutional law professor Obama actually were to choose a candidate based upon their potential prudence in interpreting the law in its original intent, the country would be well served. However, Obama’s penchant for political pettiness will unfortunately prevail.

That unattractive pettiness can also be witnessed in the GOP candidates for the presidential nomination. Texas Sen. Ted Cruz chastised the president for stating his intent to exercise his constitutional duty. Florida Sen. Marco Rubio also strongly encouraged the president to leave the casting of a Supreme Court Justice to the next president, which Rubio hopes is him. Frontrunner Donald Trump was more ambiguous, but he attacked Obama’s record of decision-making.

Our Supreme Court is aging fast. Ruth Bader Ginsburg is 82 years old. Stephen Bryer and Anthony Kennedy are in their late 70s. Samuel Alito and Clarence Thomas are in their late 60s. Thus, the next president will likely be making multiple appointments to the high bench. This fact should conjure some important contemplative questions. Which of the current candidates – Trump, Rubio, Cruz, Kasich, Clinton, or Sanders – would choose a new associate member of the court that reflects your perception of what a jurist should be?

Hillary Clinton has been an outspoken critic of the Citizens United decision of 2010. Donald Trump has stated he felt the 2012 decision that upheld the Affordable Care Act was mistaken. Bernie Sanders has also derided Citizens United and also said any converse modifications of Roe v. Wade would be intolerable. Marco Rubio said he would like to overturn the decision that legalized gay marriage. One would presume that these candidates would choose potential justices that would try to achieve their agendas.

Would you vote for a presidential candidate that would want a political ideologue that might make decisions not as a matter of law but as a matter of changing social mores? Or would you like a great intellectual like Antonin Scalia who was often misperceived as a man who put political philosophy first, but in reality was a constitutionalist, an originalist, and a textualist in his evaluation of our sacred Constitution?

Ideally, the judicial branch of government should be politics free. Jurists should have the purist of objectives. Simply, the Supreme Court should be the last line of redress in our system of jurisprudence. Everyone is entitled to their day in court in America. And that day should not be influenced by politics, but by the original intention of the written standard of justice by those who laid the foundation of our nation.

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  • Justanidiot

    A judicial giant in his mind.

    Thursday, February 25, 2016 Report this