February 16, 2016

Justice Antonin Scalia

Justice Antonin Scalia

Source: Wikimedia Commons

It is a measure of the stature and the significance of Justice Antonin Scalia that, upon the news of his death at a hunting lodge in Texas, Washington was instantly caught up in an unseemly quarrel over who would succeed him.

But no one can replace Justice Scalia.

He was a giant among jurists. For a third of a century, he led the conservative wing of the high court, creating a new school of judicial thought called “originalism.”

But originalism is not conservatism, which, in the judicial era that preceded Scalia, often meant court decisions that “conserved” the radical social revolution Earl Warren’s court had imposed upon us.

Scalia believed in going back to the founding documents of the republic and discerning from them the original meaning and intent of the framers.

He would look at the purpose of the authors of the Constitution, the Bill of Rights and post-Civil War amendments, and conclude that it was an absurdity to discover there, or read into them, a constitutional right to have an abortion or to marry someone of the same sex.

The words Scalia used to ridicule such nonsense did as much to discredit majority opinions as did his dissenting votes.

“The window for any Supreme Court nominees should be slammed shut—until 2017.”

I remember being called into the office of White House Chief of Staff Don Regan, 30 years ago, to be informed that the judge whom Ronald Reagan would name to replace William Rehnquist, who had been named Chief Justice, would be U.S. Appellate Court Judge Antonin Scalia.

Regan was grinning at me as he made the announcement, and I let out of a whoop of victory. Since Nixon days, some of us had argued for naming an Italian Catholic to the high court. Yet, all six of Nixon’s nominees, and the only nominee of Gerald Ford, were WASPs.

Scalia’s death removes the court’s most brilliant mind and most colorful member. Personable, witty, acerbic, a fine writer, he used his opinions, mostly dissents, not only to make his case but to skewer the majority opinion.

And while Sen. Mitch McConnell may be faulted for not waiting a decent interval after Scalia’s death to declare that the Senate will not confirm any Obama nominee to succeed Scalia, the majority leader’s position is exactly the right one for the party.

Some of us in the Nixon campaign of 1968 still recall how Chief Justice Earl Warren, fearing his old antagonist Richard Nixon might be elected, offered his resignation to LBJ in June of 1968, but contingent on Senate confirmation of a successor. The fix was in.

Johnson nominated Justice Abe Fortas, a crony, to succeed Warren and Judge Homer Thornberry of Texas, another crony, to fill the Fortas seat. Nixon, urged by his old friend William Rogers, Ike’s attorney general, stayed out of the battle. Some of us did not.

Senate Republicans, led by Bob Griffin of Michigan and including John Tower, Howard Baker and Strom Thurmond, held up the vote on Fortas, until they had enough support to sustain a filibuster and run out the clock. In October, Fortas threw in the towel.

The following spring, President Nixon named U.S. Appellate Court Judge Warren Burger to succeed Earl Warren as chief justice.

The GOP Senate majority should follow the example of that gutsy Senate Republican minority of half a century ago. The window for any Supreme Court nominees should be slammed shut—until 2017.

Republicans should tell our “transformative” president that his days of transforming America are over, that he will not be remaking the court into a bastion of the left after his departure, and that, while he has the right to nominate whom he wishes, the U.S. Senate will exercise its right to reject any nominee he sends up. If the court will then face many 4-4 decisions for the next year, so be it.


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