The Scalia Lesson

Feb. 19, 2016

The president should nominate a Supreme Court Justice and, after due diligence determines his or her qualifications, the Senate should confirm the nominee. At least that’s the way it’s supposed to work.

Instead, we’re witnessing why Congress has a 13 percent approval rating. The Republicancontrolled Senate, led by Obstructionist In Chief and Majority Leader Mitch McConnell, has declared they won’t allow any nominee to even get so much as a hearing. They don’t care who it is.

The argument put forward is that the nomination to replace Antonin Scalia should wait until after the 2016 elections. They claim “the people have a right to decide.”

The U.S. Constitution gives that job to the president — not “the people” — with advice and consent from the Senate. There are no time restraints mentioned. And, if it actually is up to the people, they did decide, twice; they elected Barack Obama, whose constitutional job it is to appoint federal judges.

It’s likely, in fact, that Obama will nominate someone the Senate has already approved for the federal appellate bench, further complicating the strategy of obstructionism.

The two most often mentioned are Sri Srinivasa and Jane Kelly. Srinivasa, a naturalized citizen born in India who served in both the Bush and Obama administrations, now serves on the U.S. Court of Appeals for the District of Columbia. Kelly serves on the 8th Circuit Court of Appeals in Des Moines. Both were confirmed by the Senate in 2013 by unanimous votes, including those of current GOP presidential contenders Marco Rubio and Ted Cruz.

It’s hard to imagine what could have gone so wrong in less than three years that neither of these unanimous selections now deserves even the courtesy of a hearing.

There is a potentially nifty irony here if circumstances so conspire. The judges the Senate refuses to confirm could be making decisions with the same consequence as if they were made by the Supreme Court.

Assume there is a case before the 8th District, for example, and that Kelly is the deciding vote. That case makes its way to the U.S.

Supreme Court which then deadlocks, 4-4, a result more likely than not absent a ninth justice. In that case, the decision made by the 8th circuit, the one in which failed nominee Kelly cast the deciding vote, becomes law.

It’s even more ironic the obstructionists now pervert the very Constitution Scalia fought a legal lifetime to defend. As the Court’s strictest constructionist (accepting the constitution literally as written without other inferences), it’s likely Scalia would not find constitutional support for the GOP delaying tactics.

But there is a bigger lesson here completely lost on Congress and too many others. We have Scalia and other justices to thank for it if only we’d pay attention.

Scalia wrote the harshest, most acerbic opinions and dissents on the bench, oftentimes with sarcastic personal asides. He was frequently an unpleasant inquisitor for lawyers arguing before him. His judicial philosophy was rigid and absolute.

Yet his best friends on the court were his philosophical opposites. His family vacationed with Ruth Bader Ginsburg, who he called “my best buddy.” He taught Elena Kagan to hunt and they avidly did so together.

They understand their roles do not require personal animosity but collegiality. Scalia’s blistering commentary clouded the fact that he enjoyed the intellectual rigor of his philosophical opponents and their ability to support even those positions with which he disagreed.

On the Court, strongly held and argued differences do not enemies make.

Compare that to Congress, where every disagreement functions as an enemy nursery generating newborn animosity almost daily.

It certainly helps that the Court does not need to run for election or re-election, and there are only nine of them and they communicate every day. Their lifetime job security allows them to engage without fear. More than anything, though, they actually know each other, a connection sorely missing from Congress today.

Their ability to compartmentalize and separate the daily battles from their personal relationships is instructive. They’ve made a choice based on respect that somehow eludes Congressional leaders of both parties.

There was a time, not that long ago, when the wheels of Congress ground forward almost entirely because of personal relationships. The business of politics, their business, required it.

Members of Congress today have chosen a different path; no relationships, no respect, no collegiality. It’s so much easier to make enemies of people you don’t even know.

Antonin Scalia and his friends on the Court have given us a lesson in how strongly felt but honorable disagreement can be conducted: full throttle but without drawing blood or leaving bruises. They have chosen civility.

Too bad the Court can’t issue an opinion requiring the same of Congress.