Sunday, February 14, 2016

May Justice Scalia rest in peace and his work continue

This weekend, America lost a great man. Justice Antonin Scalia was, more than anything else, committed to law as a discipline;  as a way of resolving questions that is distinct from - and more limited than - politics, economics and moral philosophy. Judges, in his view, are not charged with the capacious inquiry into what is "right," but a more limited duty to decide what is and is not legal.

To that end, he championed interpretive methods - ways of deciding cases - that limited judicial power and discretion. He was a champion of "textualism," arguing that constitutional and statutory language should be read to mean what it says. (It would surprise the general public to know that this common sense approach is quite controversial among certain elements of the legal community.) Justice Scalia was committed to the notion that, if the language of a law is not clear, judges should not simply give it their preferred meaning, but should attempt to discern its "original meaning," i.e., determine what it meant to those who adopted it and gave it the force of law.

As an advocate of plain meaning and originalism - two ideas that were met with derision among legal sophisticates when I attended law school - Justice Scalia moved the law. While I did always agree with him - I thought his view of executive and administrative power was too generous and his views on what cases can and cannot brought in federal court too limited - we are closer to a proper understanding of our Constitution than we were thirty years ago.

Because he believed in judicial modesty, Justice Scalia would not have wanted the selection of his successor to be the existential battle that it is likely to become. He did not believe that courts should have enough power and discretion to make the question of who sits on them as important as it has become.

But it is.

While the Supreme Court is routinely described as "conservative," it has a very disciplined bloc of four members firmly ensconced in the doctrines and understanding of the legal left. Justices Ginsburg, Breyer, Sotomayor and Kagan would dramatically change our constitutional jurisprudence. On a long list of issues - affirmative action, free speech, freedom of religion, federalism - a fifth vote for this group will change current doctrine.

The Senate is not obligated to allow President Obama to change the Court in this way. It's right to "advise and consent" - its duty to exercise independent judgment on judicial nominees - says otherwise. That duty is not limited to passing on a nominee's legal qualifications. It is also free to insist that a nominee have demonstrated a proper understanding of the Constitution. It is obligated to ensure that a nominee have a commitment to federalism, the separation of powers, individual liberty and the written Constitution.

If the Senate is unable to confirm the President's nominee, it will not be "obstructing" the process but playing its constitutional duty in that process. It has absolutely no obligation to agree to the President's choice and, indeed, has a duty to exercise its independent judgment.

It has been eighty years since a vacancy arising in the year of a Presidential election has been filled in that year. In 1956, President Eisenhower made a recess appointment of William Brennan, but Justice Brennan was nominated and confirmed in 1957 - after the President was re-elected. In 1968, Chief Justice Earl Warren announced his retirement and President Lyndon Johnson - like Barack Obama a lame duck -  nominated Abe Fortas to replace him. Fortas' nomination was blocked by filibuster. The people elected Richard Nixon and it was Nixon who nominated Warren Burger to fill the vacancy and the next Congress that confirmed him.

The future direction of the Court is in the balance and the nominee is likely to serve for a generation. With the presidential election upon us, the people ought to be heard on who will fill this vacancy.

1 comment:

Anonymous said...

"Unable" or unwilling?