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

REUTERS/Kevin Lamarque
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."

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.

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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Comments (38)

  1. Submitted by beryl john-knudson on 02/19/2016 - 09:08 am.

    “… no illusions” Scalia

    …tell Obama to send us someone “smart”?

    Smart like a fox eh,?

    Too bad Axelrod did not ask him to define his terms…there are so many variables to the definition of a word?

    Then again, there are no deities before us in the choice of a replacement for Scalia; no 24 armed deified Kali’s thank the gods.

    But some of my ignorance has been enlightened and at the same time, I find disappointment in knowledge that the state of those black=robed judges are appointed, essentially resting on their political sensitivities?

    This was a very fine piece here and when I restore my ink level on my printer will make a copy for reference. Thanks to the most honorable judge Kevin Burke.

  2. Submitted by Pat Berg since 2011 on 02/19/2016 - 09:08 am.

    Just let the process play out

    We don’t know who Obama is going to nominate until the nomination is made. All the hand-wringing about it is wasted energy and only serves to create the possibility of a no-win situation as outlined by Judge Burke.

    “God grant me the serenity to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference.”

    I think we could all do with a little more wisdom . . . . .

  3. Submitted by Jim Boulay on 02/19/2016 - 09:12 am.

    Thurgood where are you?

    Elections have consequences. This is how the republicans were able to replace THURGOOD MARSHALL with clarence thomas! A man who benefited from the long legal battle to win civil rights led by justice Marshall and then after he got on the bench did everything in his power to overturn Marshall’s life work! It’s time to bring back the true balance to the court that moves the country forward for ALL AMERICANS not just the 1%! Where is this generations’ Marshall?!?!?

  4. Submitted by Frank Phelan on 02/19/2016 - 09:41 am.

    GOP Disapproval?

    I find it fascinating that only 18% of Republicans have a dim view of SCOTUS. I guess that’s what a couple of generations of victim mentality gets you. In my life time, the “center” of the court has become the “left”, and what was once the “left” has disappeared. That’s what happens when one side picks far right justices and the other side picks “responsible moderates”; it’s led not only to divisiveness but a lack of balance. But I don’t expect real left wingers to be nominated by corporate Democrats who raise campaign funds on Wall Street.

    Equally fascinating is that a large majority of Democrats have a favorable view of the court. Have they been paying any attention since the Warren Court ended? Other than a few rullings during the Warren court, SCOTUS has been regressive institution where progressive forces lose most of the time.

    • Submitted by joe smith on 02/19/2016 - 10:37 am.


      Isn’t the job of SCOTUS to uphold the constitution with legal rulings? Maybe the constitution of the USA isn’t that liberal or progressive? It is not a living breathing document, it is a written document, that says only what it says.

      • Submitted by RB Holbrook on 02/19/2016 - 11:23 am.

        Since When?

        Justice Scalia talked a good (and loud) game about textualism and originalism, but he was perfectly willing to shred the text of the Constitution when it suited his purposes.

        • Submitted by Jim Million on 02/21/2016 - 12:23 pm.


          Example(s) please, RB

          • Submitted by RB Holbrook on 02/21/2016 - 03:08 pm.

            One Example

            Justice Scalia was willing to ignore the text of the Establishment Clause to hold that the government could favor religion of non-religion. Somehow, he was able to conclude that the First Amendment “explicitly favors religion . . .” Elmbrook Sch. Dist. v. Doe, June 16, 2014 (dissenting from a denial of certiorari). He referred to objections to public religious display as a kind of personal aversion, much as he personally might feel about rock music or Stravinsky (way to keep current on the culture wars, pal) being performed in public.

            His opinion in District of Columbia v. Heller was an incredibly selective historical mishmash that conveniently ignores contrary scholarship on the Second Amendment, but that’s another story.

            • Submitted by Jim Million on 02/23/2016 - 05:12 pm.


              Certainly such aversion can be both personal and institutional; however, that was not the basis of the ruling.

              Is there possibly more judicial latitude in dissent than in majority findings? Maybe, don’t know.

              • Submitted by RB Holbrook on 02/24/2016 - 09:06 am.

                A Better Example

                You’re right–a dissent from a denial of certiorari isn’t much.

                I should have thought of it earlier, but the so-called textualist happily ignored the literal text of the 11th Amendment to affirm the dubious line of precedent that says it prohibits residents of a state from suing their own state in federal court. In fact, he not only voted to affirm those rulings, but waxed lyrical in his enthusiasm for the doctrine.

    • Submitted by Dennis Tester on 02/19/2016 - 11:17 am.

      John Roberts

      After the disappointment of David Souter, the judge appointed by George Bush who turned out to be a flaming liberal, conservatives lost confidence in republican presidents to select constitutionalists to the Court.

      When John Roberts, former president of the Federalist Society was nominated, people figured he would provide a reliable vote with the other conservatives against the rubber stamps posing as justices on the Left.

      But then Roberts proceeded to create the means to finance Obamacare out of whole cloth, providing a funding remedy that even the administration dared not argue, shocking everyone, even liberal constitutionalists, the few who still exist, all who assumed Roberts would lead the decision to rule that the federal government’s plan to control health care in this country was unconstitutional.

      When that happened, not only was Roberts instantly declared persona non grata by the movement, but conservatives everywhere lost all hope and confidence that they would ever get it right again, save for Scalia.

      His blistering dissent in the latest decision included suggesting that Obamacare be renamed “Scotuscare” since the court was primarily responsible for the very existence of the law in the first place.

      Which also sheds some light on why this seat on the court means so much to conservatives. Scalia was our last great hope to ensure that our allegedly free society wouldn’t be totally swallowed up by government mandates on one hand and suffer the loss of fundamental freedoms (Heller) on the other.

      • Submitted by Kurt Nelson on 02/19/2016 - 12:30 pm.


        a flaming liberal – huh, who’d of thunk it. If you look at voting records, you can see the flaming liberal voted with Scalia just shy of 99% (Justice Thomas too). So, by your logic Justice Scalia was also a flaming liberal (and Thomas too). I always thought they were the Conservatives on the Court, guess I was wrong.

  5. Submitted by joe smith on 02/19/2016 - 09:54 am.

    Judge Burke, did you write the same article in 2007 when Shumer and Obama vowed to block any appointee by G W Bush?

    • Submitted by Neal Rovick on 02/19/2016 - 11:55 am.

      Please provide the quote where Obama himself vowed to block ANY appointments made by the Bush administration.

      Sen. Barack Obama (D-IL) said, “Though I will reserve judgment on how I will vote on Judge Alito’s nomination until after the hearings, I am concerned that President Bush has wasted an opportunity to appoint a consensus nominee in the mold of Sandra Day O’Connor and has instead made a selection to appease the far right-wing of the Republican Party.”[14]

      • Submitted by Jim Million on 02/21/2016 - 12:28 pm.

        Fair archived quote

        Let’s just wait and see

        if we get

        ‘a consensus nominee’.

      • Submitted by Rory Kramer on 02/23/2016 - 09:53 am.

        Explain this then

        Explain this comment made by then-senator Joe Biden in 1992:

        Were there a vacancy, Biden argued, Bush should “not name a nominee until after the November election is completed,” and if he did, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”

        U.S. Supreme Court Associate Justice Antonin Scalia. (J. Scott Applewhite/AP)
        “Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself,” he continued. “Where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue.”

        • Submitted by RB Holbrook on 02/23/2016 - 11:07 am.

          Oh, noes! The inevitable contradiction!

          I knew it was just a matter of time–minutes, not hours–before the triumphant posting of this tidbit. Let me offer a few observations:

          1. There is no such thing as unanimity in any human endeavor. Joe Biden is, as are we all, entitled to his own opinion. Whether his opinion has changed since 1992, and whether that change in opinion is genuine, are different matters.

          2. The Vice President of the United States has no constitutional role in the nomination or appointment of a Supreme Court Justice.

          3. The statement was hypothetical, and couched in hypothetical terms (“If this happened, then . . .”). We will never know what would have happened if there had been a Supreme Court vacancy, just as we will never know if then-Senator Obama would really have participated in an effective filibuster against Justice Alito’s nomination.

          4. Biden was wrong. Wrong, wrong, wrong. There is no historical precedent for declining to nominate a Supreme Court Justice in an election year. After all, President Adams sent John Marshall’s name to the Senate after he was defeated for re-election, and it didn’t seem to phase anyone. The simple fact that he is a Democrat does not make his comment correct, and I don’t know if you will find many who are willing to defend it on that basis (FYI Liberals and Democrats do not see themselves under any obligation to defend every statement that has ever been uttered by a Democrat or liberal).

          5. This statement will be paraded about at great length, and is further proof that the Republican Party today has abandoned any pretense at a coherent ideology (beyond “lower taxes” and “we hate Democrats”). Playing “gotcha” is not governance, it is opposition. If this is the best that the Republicans can come up with, they really are a sorry bunch.

          6. In the spirit of “gotcha,” before anyone gets too smug about Biden’s remarks, I would suggest they read Mitch McConnell’s 1970 law review article about the constitutional role of the Senate in confirming Supreme Court nominees (McConnell, Haynsworth and Carswell: A New Senate Standard of Excellence, 59 Ky. L. Jrl. 43 (1970)). In that article he said that “The president is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform.” Id. at 68.

          • Submitted by Sean Olsen on 02/23/2016 - 03:06 pm.

            Timing matters

            Biden’s comment was made in June, after the Court had completed its term. By living Scalia’s spot open until after the election results in two Supreme Court terms being undermined by only having eight justices on the Court.

    • Submitted by RB Holbrook on 02/19/2016 - 01:04 pm.

      A Little Background

      There was no “vow” to block any appointment.

      For those of you who do not find it necessary to continue to do opposition research on President Obama, the “filibuster” was a symbolic effort to delay the confirmation vote on Justice Alito’s nomination. It was widely considered at the time to be nothing more than a futile gesture. As then-Senator Obama put it, “The Democrats have to do a much better job in making their case on these issues. These last-minute efforts–using procedural maneuvers inside the Beltway–I think has been the wrong way of going about it.”

      Justice Alito was confirmed, with the confirmation vote taking place about a week after the Senate Judiciary Committee reported the nomination to the full Senate.

  6. Submitted by Andy Kremer on 02/19/2016 - 10:52 am.

    Perhaps ironic . . .

    Isn’t this exactly what Scalia predicted would happen? That by repeatedly inserting itself into hot-button political issues on constitutional pretexts the Court would eventually undermine its own legitimacy and cause it to become a more overtly political body?

    He warned that well-meaning attempts by the Court to settle divisive issues based on pure policy arguments (rather than constitutional principles) merely “fanned into life [issues] that have inflamed our national politics in general, and obscured with its smoke the selection of Justices to this Court, in particular, ever since.”

  7. Submitted by Alan Muller on 02/19/2016 - 12:08 pm.


    I do not find this piece entirely coherent.

    For example, if 76 percent of Democrats approve of the court and 18 percent of Republicans, (can this really be?) then how does it follow that “A majority of the public already disapproves of the Supreme Court.”

    “Seventy percent of the people believe that Supreme Court justices make decisions based upon their own personal or political views.” I think that is the case. The Court makes policy decisions; if something were clearcut as a matter of law it would mostly not get to the Supreme Court. (Excluding, of course, matters of original jurisdiction.)

    Many people are arguing that Obama should nominate a person perceived as ideologically neutral. If he does not attempt a “recess appointment” that argument may be convincing.

    • Submitted by Kevin Burke on 02/21/2016 - 06:47 am.

      Disapproval for the Court

      When you look at polling based upon party identification you have Democrats and Republicans. When you then add independent voters you get a majority of the American people have a negative view of the United States Supreme Court.

  8. Submitted by Connie Sullivan on 02/19/2016 - 01:03 pm.

    First, let’s not forget that the true outrage this past week was Sen. McConnell, and the Republican party leadership in general, stating that this current President should not even attempt to nominate anyone to replace Justice Scalia. That the Republican-controlled U.S. Senate would not even hold hearings on any such nomination, much less bring a nomination to a vote. That is unconstitutional behavior on Sen. McConnell’s part, and a huge percentage of the American people recognized it and have been appalled at his suggested plan.

    Then there is the issue of whether President Obama should give up the fight before it is engaged, by nominating someone to the right of the middle, politically. Why would anyone suggest that? It would be absurd to have him repeat the self-defeating behavior he showed when, time and time again, he “gave up the farm” in negotiating before the fact with a Congress that was determined never to do anything he wanted. Our president may be a neighborhood organizer, but unfortunately you would never want him to represent you in negotiated contracts–he’s too nice, too conciliatory and gives in too soon.

    There are high-level judges in our system who were nominated by President Obama and approved by 98 or 97 Senators, Republicans included. Force the Senate to say why they approved once, but not again, of those people. This president has the right to nominate–as he has twice now–a great legal mind, even if it’s a mind that would never think to answer a question about the unsigned, five-judge opinion in Gore v. Bush, “Get over it!” (Scalia’s constant response to questions on it.)

  9. Submitted by Greg Kapphahn on 02/19/2016 - 02:43 pm.

    The Republicans Are Playing US for Fools

    I can’t help but believe our Republican friends in the senate are playing us all for fools.

    They’re doing so by using a classic “bait and switch,” negotiating tactic.

    Their opening move has already happened: their loudly-proclaimed refusal to EVEN CONSIDER an Obama nominee.

    NEXT they will agree to “hold hearings,’ (which some are already urging).

    They will STILL reject anyone, even the best qualified, most center-right candidate that Obama could possibly nominate,…

    but they think they’ll be able to do it WITHOUT the charge of being “obstructionist,”…

    because they’ll sound so much MORE reasonable than where they started,…

    having started out by erecting an unprecedented and completely unreasonable road block.

    I, for one, am NOT fooled.

    I think those of us who are anything even remotely to the left of center-right, need to make sure they do NOT get away with this.

    As far as I’m concerned, the Republicans are not off the hook for being outrageously obstructionist,…

    unless and until they approve whomever Obama appoints as our nation’s next Supreme Court justice.

    If they refuse to confirm any and all Obama nominees,…

    not to mention confirm the backlog of federal judges they’re currently stonewalling,…

    we need to work long and hard to replace EACH and EVERY ONE of the Republicans who are up for election this fall.

  10. Submitted by Ray Schoch on 02/19/2016 - 07:46 pm.

    It should be interesting

    Since Mr. Obama’s *job* is to nominate a successor to Justice Scalia, and the Senate’s *job* to “advise and consent” to that nomination, for Mr. McConnell to suggest that Obama not bother to nominate a successor is the response of a petulant 3-year-old. I, for one, look forward to finding out just how serious Mr. McConnell is about his suggested course of action for Mr. Obama.

    For example, does Mr. McConnell plan to forego his own constitutional responsibility to cast a vote in the Senate – on any bill  – for the last 11 months of his current term? I think not.

    • Submitted by Harris Goldstein on 02/19/2016 - 10:58 pm.

      Terrible Twos

      I was thinking about this as my wife and I were babysitting our 2 yo grandson while parents were out of town. The difference is that our grandson fusses for a bit and then is just fine. The republicans have been having a tantrum for the last 7 years.

      • Submitted by RB Holbrook on 02/23/2016 - 02:16 pm.

        Another Crucial Difference

        Your grandson will grow out of it. The Republicans’ tantrums are just getting worse as they age.

  11. Submitted by beryl john-knudson on 02/20/2016 - 10:03 am.







  12. Submitted by Mike Fralick on 02/22/2016 - 09:50 am.

    Replacing a supreme court justice

    One of the few things that I could agree with from Scalia, there were not many, is when is said/attributed to saying, and paraphrasing here”…I hope he (Obama) picks someone smart to replace me.” He didn’t say liberal or conservative, democrat or republician, independent or some other ideologicy…

    I am sick and tired of the partisanship on both sides, all sides of the political spectrum. Debate is welcome and encouraged but compromise is paramount to moving forward….and waiting for the outcome of an election should not/never be an option.

  13. Submitted by Mike Fralick on 02/23/2016 - 08:46 am.

    Scalia gone…

    I made this comment on another media site just after A Scalia died…and my apologies to Roy Clark…
    “…thank god and grey hound, he’s gone!”

  14. Submitted by Edward Blaise on 02/23/2016 - 01:25 pm.

    Pick 2…

    Offer up two nominees: the first a consensus builder who has been viewed as a mainstream judge thus far. This is Obama’s nominee. The second, a flaming liberal crusader, the absolute antithesis of Scalia. This is President Clinton’s nominee. Tell the constitutional activist Mitch McConell: pay me now or pay me later; because President HRC has 8 years and 4 congresses to get her person approved.

  15. Submitted by Jeffrey Brenner on 02/23/2016 - 05:47 pm.

    What if the Democratic nominee wins the election?

    If the Democratic nominee (Clinton or Sanders) wins the presidency, will Mitch McConnell say we have to wait 4 years to appoint a supreme court justice?

  16. Submitted by Dennis Wagner on 02/24/2016 - 08:55 pm.


    No one asked the question, How do you think Scalia would look/rule on this?

    • Submitted by RB Holbrook on 02/26/2016 - 08:50 am.


      Interesting question. The text of the Constitution is silent on the matter, so if the matter were to come before the Court, he would likely have dismissed it as a purely “political question.”

      I like to think that he would have had a sufficiently high regard for the Court and its importance to express a belief that the Senate should vote on a nomination. Was he too partisan even for that?

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