The late Supreme Court Justice Antonin Scalia established himself and will long be remembered as a towering hero of the conservative movement. The coming months will likely bring more political wrangling and high-minded rhetoric over the nomination of his successor.
Two key questions stand out. First, can the nomination and confirmation occur before the November presidential and congressional elections? Second, what type of nominee would clear the constitutional hurdle of Senate confirmation?
Scalia leaves an impressive legacy as a tireless and unceasing champion of democracy and the constitutional text. On a personal level, of course, he also leaves an impressive family legacy: his wife Maureen and their nine children and over 30 grandchildren.
To be sure, his relentlessly logical approach and doctrinal consistency dramatically influenced the court, even his liberal colleagues, to look to the text and the plain meaning of provisions under review. His textualist approach steered the court away from judicially crafted multi-part tests that seemed more like statutes than judicial decisions.
He imposed more analytical rigor in his approach to legal precedents and outcomes. He all but ended the judicial game of justifying outcomes by sleuthing for obscure snippets of language buried somewhere in the many hundreds of pages of “legislative history.”
Congress, he said, “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.”
As court watchers have recognized, Scalia was also one of the best writers in the history of the Supreme Court.
On the issue of his successor, history may prove instructive. The most recent occasions when a president nominated and the Senate confirmed a Supreme Court selection in a presidential election year were 1956, 1940 and 1932. In two of these cases, a Republican president named Democrats to the high court: President Eisenhower selected William Brennan and President Hoover selected Benjamin Cardozo.
President Obama could follow this precedent and name a Republican to fill Scalia’s seat. Rumor had it that Obama was considering Brian Sandoval, the Republican governor of Nevada. That type of nominee would put the pressure back on Senate Republicans to explain to American voters in their home states why a Republican nominee would be unacceptable. But wary conservatives have been burned too many times by the likes of Justices David Souter and Anthony Kennedy, or even Chief Justice John Roberts.
A Republican nominee would present a special challenge for those Republican senators up for reelection in moderate states, such as Sens. Ron Johnson (R-Wis.), Rob Portman (Ohio), Mark Kirk (Ill.), Kelly Ayotte (N.H.) and Pat Toomey (Pa.).
The confirmation process changed dramatically over the last few decades, as critics of the Warren Court focused attention on the Supreme Court’s failure to act as an umpire calling balls and strikes as it became a super-legislature of unaccountable life-tenured judges who substitute their own policy preferences for duly enacted laws — in the words of the late Professor Herbert Wechsler, a “naked power organ.”
Ultimately, we see this frustration on both sides of the political aisle in the presidential nomination contest. We see a great divide between voters’ wishes and Washington’s failure to deliver the relief they seek. That divide is one reason for the rise of Donald Trump (R) and Sen. Bernie Sanders (Vt.).
This presents Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Chairman Chuck Grassley (R-Iowa) the perfect opportunity to redeem Washington Republicans with frustrated voters of all persuasions.
The people gave Republicans a majority in the House of Representatives in 2010. They voted House Majority Leader Eric Cantor (R-Va.) out of office in a Republican primary. They gave Republicans a Senate majority in 2014. They essentially forced Speaker House John Boehner (R-Ohio) to resign last fall.
Voters sent Republicans to Washington to use their rare and historic control of both Houses of Congress to stop President Obama. It is high time now, in the fourth quarter of Obama’s presidency, to use this empowerment on the most important issue of our time. McConnell and Grassley deserve credit for recognizing the importance of this moment and the charge they have from voters.
President Obama could choose to follow the examples of Presidents Eisenhower and Hoover by crossing party lines. He could nominate a solid defender of the rule of law and the Constitution, such as Sen. Mike Lee (R-Utah). If so, the Senate would have an easy time confirming Obama’s selection. If not, the country will be better off leaving Justice Scalia’s chair empty until a worthy successor can be found.
First published in The Hill in March 2016