Justice Scalia’s Death Creates Judicial Flux

Supreme Court Justice Antonin Scalia died on Saturday. For his family and friends, this is a sad time, and this journal wishes them peace and comfort. However, Justice Scalia was a reactionary force on the bench, and his 30 years of resisting progress is one of the best arguments for ending lifetime appointment of judges. Now that there is a vacancy on the court, in a presidential election year, the political nature of the judiciary is laid bare. His successor will likely recast the ideological (that is, political) balance of the court.

The Republicans didn’t even let the body get cold before they proclaimed that the seat should not be filled by a nominee offered by Mr. Obama but that the Supreme Court should operate one justice short until the next president can appoint someone. “The American people should have a voice in the selection of their next Supreme Court Justice,” Senate Majority Leader Mitch McConnell (R-KY) said in a statement. “Therefore, this vacancy should not be filled until we have a new President.” One should note that Mr. McConnell voted to confirm Justice Kennedy on February 3, 1988, in the last year of the Reagan administration.

Mr. Obama has said that he will appoint someone, and since he will be president for the next 11 months, it is hard to see why the court shouldn’t have a ninth member for the next year and a half (presuming the Senate votes to confirm whomever the new president nominates in reasonable order). Clearly, the reason for the GOP’s resistance and Mr. Obama’s insistence is that the Supreme Court is political just as much as the House, Senate and White House are. Those who believe otherwise need to revisit just how justices get their jobs — nominated by an elected President, confirmed by an elected Senate to sit in judgment on the laws passed by Congress and enforced by the executive. The Court can be independent, but it cannot avoid being political.

In this particular situation, the advantage is with the Democrats and President Obama. The blanket rejection of any nominee as per Mr. McConnell will give the Democrats the opportunity to paint the GOP (justly) as being needlessly obstructionist. Month after month, with a nominee named, vetted and denied a floor vote on confirmation, will simply make the Republicans look bad, and it will possibly cost them seats in Congress if it goes on to November. Should the Democrats win in November, the GOP will have no choice but to yield.

The conservatives’ hope is that a Republican wins the White House and can appoint someone more in keeping with Justice Scalia’s reactionary approach. However, there is nothing that says the Democrats cannot adopt the same line (filibustering if in the minority, requiring just 41 seats) and point to Republican precedent. Furthermore, if the Democrats get a majority in the Senate (as this journal expects), they could bring it to a floor vote and reject the nominee — repeatedly.

Moreover, there are significant problems for the Republicans with an 8-member court. In those cases where they might have prevailed on a vote of 5-4 (what could be more political?), they can now expect a 4-4 tie. When that occurs, the lower court decision stands, and there is no national precedent set. Given that 9 of the 13 federal circuits have majorities appointed by Democrats (a legalistic way of saying there’s a Democratic majority on the bench), and given that most Americans live in one of those 9 circuit, most of the country is being handed over to the Democratic judiciary.

Moreover, Justice Kennedy is often the swing vote. Perhaps the absence of Justice Scalia’s pugnacity will make it less likely that he sides with the Republican Justices. Without the anchor that Justice Scalia provided to the conservatives, perhaps those 5-4 votes might have been 5-4 or 6-3 the other way. The Supreme Court’s small membership makes the personality of each a factor in the internal politics of the Court.

The belief that the judiciary interprets the laws devoid of political considerations is, of course, one of the many delusions from which a broad section of the American electorate suffers. Judges and justices are political animals, and the nation ought to acknowledge this. One can be radically progressive, rabidly reactionary or anything in between. All that one can really ask is that the members of the judiciary accept the duty of being fair. History is likely to decide that Justice Scalia came up short on that score. One hopes his successor improves on that record. After all, the title is “Justice.”