Justice Scalia’s death underlines the implications of your vote for president
Northern Virginia criminal defense attorney Jon Katz, on the implications of replacing Justice Antonin Scalia
Not long after deciding to enter the George Washington Law School for fall 1986, I was beyond irritated by the further revelation of the dangers of Reagan’s presidency, by his nominations of then-justice William Rehnquist — who once called undocumented immigrants “wetbacks” during a conference of justices — to replace outgoing chief justice Warren Burger (both Nixon appointees). and solidly right wing Antonin Scalia to fill Rehnquist’s seat. Nixon likely more than salivated to have crabbed-on-civil-liberties Burger replace Earl Warren, a Republican under whose leadership the Supreme Court made huge advances for First Amendment rights and criminal defendants’ rights; and to add to the Court reliable right-winger Rehnquist — whom Nixon first thought dressed like a clown (Rehnquist either relished the 1970’s long sideburn/loud tie era or bowed to it) and, in his customarily bigoted way, referenced as Renchburg after wondering if he was Jewish.
I never wanted Antonin Scalia on the Supreme Court. He gave with one hand to civil liberties with some of his votes and opinions on Fourth, Fifth (due process in sentencing), and Sixth (Confrontation Clause) Amendment rights for criminal defendants, but took away much more on balance with his staunch defense of the government’s right to execute, often crabbed view of the First Amendment and other civil liberties areas, and support of a free reign by the government to prevent and curb abortions. I disagreed with his dissent in Lawrence v. Texas, where he opposed quashing laws criminalizing consensual adult sodomy, but I did agree with his siding with the majority in Citizens United (giving First Amendment protection to campaign finance) and Heller (authoring the opinion giving teeth to the Second Amendment).
Scalia’s nomination sailed through a Senate misdirected by the Rehnquist chief justice nomination hearings, that has since made sure to more heavily grill all future Supreme Court nominees, starting with Robert Bork in 1987 and continuing to the present, with each subsequent nominee further perfecting the art of giving limited insight of how they will rule on the Court.
Justice Scalia died February 12 or 13 while in Texas on a hunting trip. He was who he was. His death should neither invite joyous dancing nor a whitewash of who he was. He lived very publicly in a very public position, and deserves no kid glove treatment in history. Many assessments of Richard Nixon soon after his death talked in watered-down terms of a “flawed” president, but later releases of Nixon’s White House transcripts further revealed the ruthless, dangerous and bigoted man he was.
Scalia was not a Nixon, but himself stuck his foot in his mouth only last December by touting a legal brief’s concept of sending African-American students to “less-advanced schools”. Let his actions and words speak for themselves.
My opposition to Scalia’s seat on the Supreme Court only got further solidified when I heard and met him in my fall 1987 or spring 1988 law school semester. When it was announced that Justice Scalia would be speaking at our law school, I worked with other law students to gather over eighty law student petition signatures that the death penalty violates the Constitution’s Eight Amendment.
I was one of the first in the audience to ask a question, after Scalia’s speech that non-plussed me with such basic talk that toasting the Queen of England over after-dinner drinks in England is not parallel to an American at the gathering responding with a toast to the United States president. (Then again, then-Justice O’Connor apparently presented even a more lackluster speech, which I did not attend, when I was in my first year of law school). I asked Justice Scalia his opinion on Chief Justice Rehnquist’s stated concern about death penalty appeals/habeas corpus petitions taking up so much time of the federal courts. Justice Scalia replied “I have no opinion.” To this day, I do not accept that this particularly opinionated of jurists had no opinion on this critical matter that was occupying so much federal court time and resources, versus that he did not find it provident to share his opinion.
After finishing his talk and before proceeding to the nearby building for a post-talk reception that of course I declined to attend, I walked up to Justice Scalia and told him that I had a petition signed by over eighty law students that the death penalty is unconstitutional. He refused to accept the petition, and told me that if I wanted to lobby him, to do so in oral argument, which of course is hard to do when the Supreme Court only accepts one to two percent of certiorari petitions for oral argument. I told him I would send the petition to his secretary in the event he changed his mind not to look at the petition. He retorted that his secretary would throw out the petition, just like she does with all petitions.
Of course, with what I know now as a lawyer, I would not today present a petition to a judge rather than presenting my views in an amicus/friend of the court brief. Nevertheless, Justice Scalia was very active on the social, political gathering, lecture, and interview circuit, and certainly did not limit his views on the death penalty to what he had learned through oral argument, case law and the appellate record, which is why only shortly after encountering him at my law school, I was not surprised to see that only a few months earlier, his dissent in the Booth v. Maryland death penalty case included: “Recent years have seen an outpouring of popular concern for what has come to be known as ‘victims’ rights’ — a phrase that describes what its proponents feel is the failure of courts of justice to take into account in their sentencing decisions not only the factors mitigating the defendant’s moral guilt, but also the amount of harm he has caused to innocent members of society.”
Scalia delighted being on the Court, was gifted with great intelligence, knew how to make friends with people across the political opinion spectrum, and found the time to enjoy life outside of work, including appearing in local opera cameos, joining then-vice president Cheney and others on a hunting trip, and socializing with Justice Ruth Bader Ginsburg, with whom he often sharply disagreed in Supreme Court cases. All I wanted was for him to choose a different profession than that of a Supreme Court justice, but he loved that job, and was not about to leave.
Now comes the task of replacing Justice Scalia. Justice Anthony Kennedy’s nomination sailed unanimously through the Senate less than a year before lame duck Reagan’s presidency ended, after the heated and failed Bork nomination that was followed by the Douglas Ginsberg nomination that got aborted after revelations of his past with marijuana. We live in a different time now, when Senate hearings of Supreme Court nominees are more politicized than ever.
The battle lines for replacing Scalia likely are already getting drawn, with plenty of Senate Republicans ready not only to pounce on any Obama nomination, but also to work to stall until Obama’s replacement can nominate Scalia’s replacement. And to be fair to Republicans, plenty of Democratic senators could be expected to do the same to a lame duck Republican candidate this close to a presidential election.
However, not only does Scalia’s death spell eight-justice (rather than nine-justice) decisions on cases that already have been orally argued, but many cases remain to be orally argued through this April before the Supreme Court. One could argue that two months is too short to consider a Supreme Court nominee, but each justice also has a vote whether the Court will even consider a case in the first place, and has authority over a certain number of federal courts of appeal, to stay their decisions pending possible Supreme Court review. One could argue on the other side that eleven months (the period remaining in Obama’s presidency) is more than enough time to seat a new Supreme Court justice. Of course, Senate Republicans can take the nomination away from Obama by simply refusing to deliver the necessary votes required by the Constitution to confirm a Supreme Court nominee.
Whether or not a new Supreme Court nominee is confirmed before the November 2016 presidential election, Justice Scalia’s passing means that judicial appointments will be all the more in voters’ minds this November, which focus is necessary
Presidents not only fill Supreme Court vacancies, which only tend to take place every few years, but they also constantly fill scores of vacancies on the many federal courts of appeal and federal trial courts. These are lifetime appointments that reverberate well beyond the time that a president leaves office.
Beware, then, what a loose-cannon president Trump would do with nominations to the Supreme Court and other federal courts, as well as the rest of the possible Republican presidential nominees. Justices Ginsburg and Breyer are among the four more liberal justices, and were born before 1940, which is the same for frequent swing voter Anthony Kennedy. Remaining on the Court’s now three-justice right wing are all justices born from 1948 to 1955, who are likely to remain on the Court for many more years.
Supreme Court reporter and watcher Jeffrey Toobin is among those seeing Sri Srinivasan as being on Obama’s shortlist to replace Scalia. Srinivasan’s unanimous confirmation to the D.C. Court of Appeals by no means spells an easy Supreme Court nomination process for him, but of course will be used as an argument by his supporters to confirm him to the Court. It also does not hurt his chances with Republicans that he was a law clerk for Supreme Court Reagan appointee Sandra Day O’Connor. Apparently, Srinivasan has disclosed little about his own political philosophy during his short tenure as a federal appellate judge and from his time in the Justice Department, which of course makes him more unknown about how much he would support civil liberties and how he would vote on other issues as a Supreme Court justice. With Srinivasan being Indian-born and Hindu, some Republicans may pause against seeming bigoted in any opposition to his nomination.
If Obama or a Democratic successor get to pick Scalia’s successor, that will eliminate the four-justice right-wing stronghold on the Supreme Court that remained until Justice Scalia died. That alone foretells a harsh battle for Obama’s nominee to replace Scalia.
Consequently, as much as I am not fond of overly-hawkish and overly-programmed Hillary Clinton, and not thrilled about Bernie Sanders’s socialism, I will vote for either of them in a heartbeat over the Republican presidential nominee, who will run from the scary Trump to the excessively right-wing Cruz and Rubio (whose early February debate gaffes underline him as too green to be the nation’s leader), to all of them competing for the title of the biggest war hawk. A president Sanders or Clinton are not going to damage civil liberties nor court nominations as badly as will one of the Republican candidates currently vying for the presidency.