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On replacing Scalia: ‘Do it later’ is not in the text of the Constitution

Justice Antonin Scalia looked for “what is the fairly understood meaning” of the Constitution’s text. How would he have suggested replacing himself?

Seven years ago, Scalia said to Obama adviser David Axelrod, "I have no illusions that your man will nominate someone who shares my orientation. But I hope he sends us someone smart."
REUTERS/Kevin Lamarque

After the retirement of Justice Lewis Powell, President Ronald Reagan nominated Justice Anthony Kennedy on Nov. 30, 1987. Reagan had 14 months left in office and a Democratic Senate, which confirmed Kennedy in early February 1988. President Barack Obama has 11 months left in his term and a Republican-controlled Senate. Justice Kennedy was confirmed even though President Reagan had only three months more left in his lame-duck term than Obama. So does less than three months make that much difference?

Judge Kevin S. Burke

Not much thought was given to this history given the rapid reaction to Justice Antonin Scalia’s death. Before his body reached the funeral home, the chorus was saying that Obama need not submit a nominee. Sen. Mitch McConnell and others expressed their determination not to give Obama the opportunity to nominate anyone. It would have been perfectly understandable for McConnell to have said, “Finding someone who is acceptable to both political parties is paramount. It can be done as illustrated by the fact that Justice Scalia was confirmed by the United States Senate unanimously. It will be hard, but we owe it to the nation and the Supreme Court to try.” But that is not what he said.

President ‘shall nominate’

The U.S. Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate (appoint) … Judges of the Supreme Court.” Justice Scalia believed that the U.S. Constitution is not a document that is living and breathing. For conservatives, Scalia is an icon. And so perhaps reflecting on what he may have said about the process of finding a replacement for him is worthwhile. He explained how he looks at the Constitution:

The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. … I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

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Before those who admire Scalia join the stampede to just put off the decision on his replacement for the rest of this Supreme Court term and most if not all of the next term perhaps they should answer the question of how Justice Scalia would rule on the obligation under the Constitution of a president to nominate a justice and the Senate to give its advice and consent? “I would rather do it later” is not in the text of the Constitution. 

At the same time those who want to join the stampede in the other direction — i.e. President Obama needs to nominate a doctrinaire liberal to lead the charge to reverse Citizen’s United and every other recent conservative decision — need to ask whether they are simply the left’s mirrored version of the rabid right. Both of the competing stampedes — unless this stops right now — are likely to do serious damage to the U.S. Supreme Court and maybe all of the nation’s judiciary.

Roberts’ concerns

This month Chief Justice John Roberts spoke of his concern that partisan political battles over Supreme Court nominations have led to a widespread misunderstanding about the role of the court. He said, “When you have a sharply political divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms. If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, ‘Well you must be identified in a particular way as a result of that process.’ “

Increasingly, since Gore v Bush there has been a partisan divide about how the public views the U.S. Supreme Court. Even before the death of Justice Scalia public-opinion polling showed deep partisan dissatisfaction with the Supreme Court. Although the Gallop Poll found that 76 percent of Democrats have a favorable opinion of the Supreme Court, just 18 percent of Republicans have a favorable opinion of the court, which is more negative than at any point in the past three decades. Given how dissatisfied Republicans are with a Supreme Court that Scalia served on, it is understandable why there is a partisan Republican desire to block any nominee of Obama. 

Seventy percent of the people believe that Supreme Court justices make decisions based upon their own personal or political views. To put it bluntly, the legitimacy of the Supreme Court and the nation’s judiciary is in fragile shape. It maybe futile to call for calm, reasoned decisionmaking, but everyone needs to understand that a presidential campaign significantly focused upon Justice Scalia’s replacement dooms his successor from having legitimacy with the nation as a whole. A majority of the public already disapproves of the Supreme Court. The court has the lowest public approval since polling about the approval of the court began. Tens of millions of dollars spent on ads advocating why we need a partisan selected Supreme Court justice is going to undermine any hope that the court will be viewed positively.

Adams’ Midnight Judges

History often repeats itself. At the conclusion of his administration, President John Adams filed newly created circuit judgeships. Unlike President Reagan, who had 14 months left in office, or President Obama, who has 11 months left in his term, the judges President Adams appointed were known as the Midnight Judges because Adams was said to be signing their appointments at midnight prior to President Thomas Jefferson’s inauguration. (Actually, only three judicial commissions occurred on the last day). Jefferson spent a lot of time attempting to get rid of the midnight judges, ultimately ending up with the case of Marbury v. Madison. The nation survived this episode of its early history, but can we now afford the risk? 

If there is a Democratic Senate, does anyone really think that President Ted Cruz’s nomination will be unanimously confirmed? If there is a Republican-controlled Senate, will there be legitimacy and trust of President Donald Trump’s nominee if that confirmation is strictly partisan — or worse yet accomplished only by changing the filibuster rules? Does anyone think Senate Majority Leader McConnell will lead a Republican-controlled Senate to embrace President Bernie Sanders or President Hillary Clinton’s nomination of the nation’s first gay (and liberal) Supreme Court justice?

Seven years ago, Scalia said to Obama adviser David Axelrod, “I have no illusions that your man will nominate someone who shares my orientation. But I hope he sends us someone smart.” He then went on to say, “Let me put a finer point on it. I hope he sends us Elena Kagan.”

There are a lot of smart people. Before our nation’s political leaders succumb to the quest for the issue of  Scalia’s replacement to become a central issue in our political debate for the next year, perhaps we should tell them the judiciary and our nation would be far better served by finding a smart person generally acceptable to both political parties now. There are such people. And, the text of the United States Constitution mandates that successful search. 

Kevin S. Burke is a trial judge on the Hennepin County District Court and past president of the American Judges Association

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