Politicans vie for Scalia’s empty seat
The United States was shocked earlier this month to learn that Justice Antonin Scalia had died. At the virile age of 79, his death came as a surprise—indeed so much so that conspiracy theories aplenty now congest the airwaves. But all circumstances of his death aside, and before discussing the political beanbag the Republican Party has made of his still-warm corpse, a few words are opportune about the man himself.
That Scalia was a conservative neither is nor ever was a secret. Many articles have already been written about his rulings on contentious Supreme Court cases stretching back into the 1980s, through which he advanced what some call a strict interpretation of the Constitution and others call a ham-fisted conservative agenda.
But he is not the first conservative Supreme Court justice and likely not the last. His more lasting legacy may be tied less to his views than to his personality, which was pugnacious, deeply sarcastic and even caustic at times—traits that bled into his opinions and may account for the vitriol that his death has spawned.
Just as British Prime Minister Margaret Thatcher’s death elicited joyful choruses of “Ding Dong, the Witch is Dead,” Scalia’s death was not received with universal grief. His opinion on homosexuality—at one point equating the “animus” to homosexuality to social animus to murder—is perhaps his most notorious, drawing the ire of proponents of same-sex marriage. On civil rights, his record is similarly controversial, especially following an opinion implying that affirmative action is undesirable because some African Americans may be better off not getting into good schools. He was not averse to making political hay of legislative issues, branding the Affordable Care Act as “SCOTUScare” after his fellow justices saved it from dismemberment time and time again. He was more than willing to make enemies in his strict interpretation of the Constitution.
To those versed on the law, these may sound like oversimplifications. This may be because Scalia’s rulings, drenched as they are in conservative humor and sometimes-undisguised activism, lend themselves to oversimplification by the legally uninitiated. Weighing in as he has on the controversial issues of his day, his followers and his detractors alike can point to his rulings as lightning rod statements on contemporary law. Indeed they may remain liberal and conservative talking point fodder for a generation.
But as consequential as he was in life, his death has become a political debacle in its own right. Before rigor mortis had even set in, Senate Majority Leader Mitch McConnell announced that his seat would remain vacant until President Barrack Obama left office. Presidential candidates Ted Cruz and Donald Trump agreed with that preposition at a Republican primary debate that night. And with Scalia’s body on display at the Supreme Court, Capitol Hill is geared up for a struggle over his seat. In the words of Governor John Kasich, “I just wish we had not run so fast into politics.” But just as Scalia was irreverent in his life, politics is irreverent to him in his death.
Both sides have begun throwing precedents at each other—one side for why Obama has no basis for appointing a successor, the other for why he does. The Republican Party closed ranks behind McConnell on blocking any new nominees but only tenuously so. Moderate Republicans like Mark Kirk and Susan Collins have refused to shut the door on nomination hearings, and indeed Judiciary Committee Chairman Chuck Grassley has not completely reneged either. But they, plus the entirety of the Democratic Party in the Senate, may not be enough to move the process forward.
As heartbreaking as it may be that the Senate is refusing to even grant a nominee their right to a hearing, it is unlikely that a new Justice will be appointed in 2016. It is an election year and two Republican
Senators are currently running for president—both with a new issue, that of Scalia’s successor, with which to bludgeon Obama. Many of their colleagues are vulnerable to electoral ouster and looking for an issue that could lift their poll numbers.
And there is limited sympathy for the Supreme Court as a whole, which lost the fickle and unprincipled support of U.S. conservatives by daring to rule against them on gay marriage, health care and affirmative action.
Thus even after death, Scalia is still causing trouble in U.S. politics. May he rest in peace—for he leaves us with none.