Justice Scalia’s death and partisan obstructionism
Justice Antonin Scalia, the longest serving member of the Supreme Court in United States history, was a titan of the legal field. Either loved or despised depending on one’s political views, Scalia’s death on Feb. 13 brought about the end of an era for the Supreme Court.
As a legal scholar, Scalia advocated a type of constitutional interpretation called originalism, or textualism. This means that the Constitution should be interpreted based upon what someone reading the document at the time of its creation would have believed it to be. This belief system led Scalia to take hardline conservative positions on a number of political and legal issues, including abortion, civil rights and immigration.
However, these beliefs did not keep him from crossing political lines in his personal life. Scalia maintained close personal friendships with those with whom he disagreed. Scalia was famously close with Ruth Bader Ginsburg, an extremely liberal Supreme Court justice, and he advocated for President Barack Obama to appoint Elena Kagan to the court, though they disagreed on a number of issues. Scalia did not believe in partisan politics dictating control of the court.
Though Scalia’s legacy will be debated by historians for years, there is one matter that clearly needs to be resolved now: finding him a replacement on the court. The Constitution is extremely clear about what happens when there is a vacancy on the court. When one justice dies or steps down, the president appoint a new justice who is then confirmed by the Senate. However, although this problem has a clear resolution outlined by the Constitution, it has still been debated in the last few weeks. As of when Buzzsaw went to press, President Obama had not appointed a new justice.
Many from the right have called on President Obama not to nominate a new justice, but rather to leave this responsibility to the next president. Marco Rubio, a contender for the Republican presidential nomination, said in a statement, “The next president must nominate a justice who will continue Justice Scalia’s unwavering belief in the founding principles that we hold dear.” Similar statements have been made by other leading Republicans, including Senate Majority Leader Mitch McConnell, and presidential candidates Donald Trump and Ted Cruz. Because Republicans currently control the Senate, the party could, in theory, block Obama’s ability to appoint anyone.
But leaving Scalia’s seat on the bench vacant presents a serious problem for the court. Currently, the court only has eight members instead of nine. This is an issue because of tie votes — with only eight justices, there is no tie breaker. Four of the justices tend to vote liberally, while the other four vote conservatively. Leaving Scalia’s seat unfilled leaves the court virtually deadlocked. It’s also almost unprecedented; if Obama doesn’t appoint a new justice, it would leave an empty seat on the Supreme Court for over a year, something that hasn’t happened since the Civil War. Many presidents have made appointments in their last year, including the conservative hero Ronald Reagan. Since 1900, there have been seven appointments to the Supreme Court in a president’s final year — all of them were successfully confirmed.
The threat by Republican lawmakers to block any appointment is a disgrace to our national political system. There is no substantive argument as to why Obama should not nominate a new justice. It is clearly within his constitutional rights as President of this country — the Appointment Clause is extremely straightforward.
So, why then do Republicans demand this of him? The answer to this question may be ugly. Political leaders, notably Republican presidential candidates Rubio, Cruz and Trump, the same people who have called on Obama not to make an appointment, have been making bigoted statements about Muslims, such as Trump calling for a ban on any Muslim immigrants coming to this country. It is no coincidence that Obama has frequently been accused of being a Muslim, as if this is something that is wrong or shameful. Even now, Obama’s nationality and religion are still being debated in the public sphere after more than seven years in office. Though there is nothing explicitly racial about Republicans’ demand that Obama not appoint a new justice, we must read between the lines.
Obama has made it clear that he intends to fulfill his responsibility by appointing a justice, but the insistence that he not do this is still an affront to his authority and an act of disrespect to the office of the President. As an originalist, Scalia would have wanted the president to do his duty to this country by appointing a replacement, as the Constitution clearly lays out that he should. As demonstrated by his friendship with more liberal, younger justices, Scalia did not resent differing viewpoints on the court. We do a disservice to Scalia by turning his death into a political tool.
Taylor Ford is a junior politics and sociology major who re-reads the Constitution on weekends. You can email him at firstname.lastname@example.org.