Sunday, February 21, 2016

Antonin Scalia, The Advocate With A Robe

I never met the late Justice Antonin Scalia and, as I will subsequently explain, I was far from being a fan of his judicial philosophy or the decisions he authored while serving on the Supreme Court. But even I was appalled by the speed with which his death created Washington's latest political football: the battle to replace him on the Court.

Replacing Justice Scalia would be seemingly be a relatively straightforward process, as Greta Van Susteren pointed out recently.  The President nominates a successor ("shall" do so, to use the Constitution's Article II language), and the Senate considers and either approves or rejects the nominee, thereby giving its "advice and consent" (again, the language from the Constitution). And yet, before Justice Scalia's body even had a chance to get cold--in fact, even before the news of his death was fully confirmed in the media--up pops Mitch McConnell to say that President Obama should pass on this constitutional responsibility in the hope that a Republican successor to Obama, combined with a Republican Senate, will select a conservative replacement.

Never mind the fact that McConnell and his cohorts would be short-handing an entire branch of government for over a year, or the fact that an Obama nominee would not be the first such nominee in a presidential election year, or the fact that it has never taken more than 125 days to approve a nomination.  Mitch's lust for power is greater than his willingness to risk using it in a way that would generate an uprising among his Tea Party base.  Or, for that matter, to use his authority to compel the Senate to carry out a specific constitutional duty.  He knows that rejecting a well-qualified Obama nominee would put certain Republican-held Senate seats in blue states up for grabs, and threaten his power in a different way than would be the case if the nomination was approved.  So McConnell's first instinct is to do nothing, and thereby prove how valueless power is in his hands.

This much should be clear:  Antonin Scalia is beloved among Republicans and conservatives not because he was a brilliant jurist.  Being a brilliant jurist would have required him to be fair and impartial in rendering judgment and authoring decisions.  Fairness and impartiality were not the hallmarks of his judicial career.  He refused, for example, to recuse himself from cases in which he was arguably connected with more than one of the parties.  And, while I appreciated his occasional votes on the right side of history and constitutional law (e.g., for flag-burning as protected First Amendment speech), his opinions were more often than not an effort to move existing law toward a pre-conceived conservative conclusion.

Nowhere was that tendency more graphically on display than in the majority opinion he wrote in District of Columbia v. Heller, which establishes an individual right to bear arms.  Despite being allegedly committed to the text of the Constitution, rather than any related legislative history, he dismisses the Second Amendment's militia-related language as a "prefatory" clause with no substantive relationship to "the right of the people" enunciated in the Amendment's "operative" clause, and justifies this in part by reference to three contemporary state-sponsored amendments that referred to an individual right to bear arms.  Scalia goes on from there to ignore the fact that the Amendment refers to the right of the "people," not "persons," and incorrectly quotes the Fourth Amendment as a basis for doing so.  Finally, knowing that he is on the verge of amending the Constitution from the bench, and overturning hundreds of common-sense restrictions on guns in the process, he pulls out of thin air a vague authority rooted in tradition for such regulations.

Put simply, Scalia threw his announced constitutional philosophy out the window when it came to something he cared about passionately and personally:  guns.  Scalia was an avid hunter; in fact, his passing occurred while he was on a hunting trip at a ranch.  And nothing, not even fidelity to the text of the Constitution, was going to stop him from finding an individual right to use and own guns. Ironically, he could have found an implied fundamental right to individual gun ownership under the line of Supreme Court cases dealing with substantive due process.  To do that, however, would have meant providing support to a line of cases loathed by conservatives, including Justice Scalia himself.

I do not rejoice in Justice Scalia's passing.  The man had a family and friends; their feelings deserve far more respect than he has received from McConnell and those joining in McConnell's call for a year-long delay in the process for finding a replacement.  But I do not deny that I welcome the opportunity to see what will come out of the Supreme Court now that it no longer has a conservative advocate on the bench.

R.I.P., Justice Scalia.  May you be succeeded, and promptly, by a true jurist.

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