RUTHFULLY YOURS

I just got the dreadful news that Justice Antonin Scalia was found dead, age 79, this morning at a Texas resort. The death of a great man is always a cause for sadness. The passing of Justice Scalia is more than that: it is a national tragedy. Of course, President Obama will nominate and try to force through a left-wing jurist to the Court. The Senate, with its Republican majority, ought to be able to defer the nomination until the administration of the next president. But note that the Senate majority leader is Mitch McConnell, not a man who is known to stand up to bullies. These are trying times for the republic. I hope my irreligious friends will forgive me for asking that we all pray for the country.

As it happens, I wrote about Scalia just a few weeks ago. I thought it might be appropriate to repeat what I said here:

January 3, 2016

“Thank God for Justice Scalia.”

I’ve often found myself muttering that exhortation in recent years. I repeated it last June, for example, when reading Scalia’s masterly dissent to Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al., the Supreme Court case that took the definition of what counts as marriage away from the states and delivered it into the hands of one man, Justice Anthony Kennedy, the Madame Blavatsky of the Bench. Kennedy looked into his crystal ball and determined that henceforth so-called “gay marriage” should be legal across the fruited plain. Why? Because, Kennedy wrote, “the Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Er, what? Had he written such nonsense, Scalia retorted, he would “hide [his] head in a bag.” “The Supreme Court of the United States,” he continued in what is one of my favorite legal footnotes, “has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Indeed. And Scalia was pointed as well as droll. You might think, or at least say when the children ask, that the United States of America is a democracy in which We, the People are sovereign. Ha, ha, ha. Really, Scalia pointed out, we are an extreme oligarchy in which “the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” all of whom went to Harvard or Yale. Feeling better?

And just yesterday, speaking at a Roman Catholic school in Metairie, Louisiana, Scalia pointed out that, contrary to some extreme secularists, government support for religion is not only justified by the Constitution but has throughout most of our history been the unspoken norm. Moreover, he argued, “one of the reasons” that the Untied States has prospered so mightily is that the American people have always done God honor. “God has been very good to us,” he said. “That we won the revolution was extraordinary. The Battle of Midway was extraordinary. I think one of the reasons God has been good to us is that we have done him honor. Unlike the other countries of the world that do not even invoke his name, we do him honor.”

Responding to the untimely passing of Supreme Court Justice Antonin Scalia, President Barack Obama declared that he will nominate a successor, breaking a nearly 100-year tradition. Both Senate Majority Leader Mitch McConnell and Republican presidential candidates have encouraged him to wait for the next president, who will be elected this November.

“I plan to fulfill one of my constitutional responsibilities to nominate a successor, in due time,” Obama declared in a statement Saturday evening. “There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.” Obama emphasized, “These are responsibilities that I take seriously and so should everyone— they are bigger than any one party, they are about our democracy.”

No lame duck president has nominated a Supreme Court justice in an election year for eighty years, a fact which both Florida Senator Marco Rubio and Texas Senator Ted Cruz mentioned in the Republican presidential debate Saturday evening.

Senate Judiciary Committee Chairman Chuck Grassley (R, Iowa) said that “it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”

“Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice,” Grassley said.

Historically, many Supreme Court nominations made in a President’s final year in office are rejected by the Senate. That started with John Quincy Adams and last occurred to Lyndon B. Johnson.

It is critically important that the Senate hold pro forma sessions, since President Barack Obama would be able to make a recess appointment to the Supreme Court if the Senate goes out of session. Currently, there is a five-day recess this week and a two-week recess scheduled for April. There have been twelve such recess appointments to the high court. A recess appointment would last until the end of the Senate’s next session.

Historically, most presidents select a nominee within a week of a Supreme Court vacancy. However, there have been several lengthy vacancies when the Senate refused to play ball with controversial presidents or controversial nominees.

President John Tyler had a particularly difficult time filling vacancies. Smith Thompson died in office December 18, 1943. His replacement, Samuel Nelson, was in office starting February 14, 1845. That’s a vacancy of 424 days. Henry Baldwin died in office April 21, 1844. His replacement, Robert Cooper, was in office starting August 4, 1846. This vacancy lasted 835 days because Tyler could not get the Senate to work with him. During Tyler’s presidency, the Senate rejected nine separate Supreme Court nominations!

Most recently, Abe Fortas resigned May 14, 1969. His replacement, Harry Blackmun, was in office starting June 9, 1970, making the gap just longer than a year.

Several pending cases were expected to be 5-4 decisions. Crucially, the immigration (DAPA) case, United States v. Texas et al., and the mandatory union dues case, Friedrichs v. California Teachers Association, and the Little Sisters of the Poor Home for the Aged v. Burwell cases on the contraception mandate accommodation.

Decisions that are tied with a 4-4 vote have no binding precedent and the decision of the lower court is upheld. This would be good in United States v. Texas et al., because the lower court’s decision was that states have standing to sue against an Obama policy that muzzles states from enforcing immigration laws.