I was shocked by the sudden death of Justice Scalia this past weekend. I will not say that he was my favorite member of the current Court or that I always agreed with his opinions, but I certainly agreed with him much more often than not. As a law professor, he served as a mentor (albeit from afar for most of us) for a generation of students who challenged the notion that law was dead, doctrine did not matter, and the U.S. Constitution should not restrain the efforts to adopt “modern solutions” and bow to contemporary public opinion. Even more so, he stood in opposition to exercise of the judicial power to invoke some new understanding of the U.S. Constitution that was not supported by its text or structure, the shared understanding of its meaning among its drafters and the people who ratified it, or the manner in which it had been interpreted from its adoption. Those positions with respect to constitutional interpretation were a reflection of a broader endorsement of the “rule of law” — that basic concept that law has a discernable meaning, that it must be applied according to that meaning regardless of the identify of the persons enforcing it (the “rule of man”) and the identity of the persons against who it is enforced (the concept that “no man is above the law”).
Against that backdrop, the response to the death of Justice Scalia has been extremely disappointing. I did not think it possible that the current political environment could get much worse, but it did. Leaders of both political parties raced to the podium to make announcements that suggested Justice Scalia’s successor would simply implement their respective political agendas, acting as a partisan no different than any other political appointee. I cannot imagine any worse tribute to Justice Scalia’s legacy than the (sometimes) unacknowledged attack on the very premise of the rule of law.
While for partisan reasons it is understandable that Democrats would prefer to see a successor nominated now at the same time it is understandable that Republicans would rather wait in the hope of winning the Presidency. But neither side should speak for the Court on whether it can or cannot function without nine justices.
The facts of the matter are that (1) President Obama has the constitutional authority to name a successor (even if he lacks the political capital to force the Senate to act), (2) that in recent decades no vacancy on the Court that has arisen in the final year of a President’s term has been filled prior to the Presidential election, and (3) that whether someone fills the vacancy immediately or the seat remains vacant until after the election, the Court will continue to function.
The dispute is one over the exercise of partisan political power, not over the legal authority of the President to make a nomination, the legal authority of the Senate to confirm or reject or delay acting upon a nomination, or the ability of the Court to do its job with a vacant seat. Most of the Court’s cases are decided unanimously or with a sole dissent. In cases where the Court divides 4-to-4, the ruling establishes no Supreme Court precedent. For cases were the Court is divided and a definitive ruling is necessary, the Court retains the power to delay until after a ninth justice joins them the hearing a case or the scheduling of re-argument. Even when the Court has nine justices, one or more may recuse themselves from a case due to a conflict of interest, yet the Court continues to serve its constitutional function.
One cannot invariably predict the rulings of a justice (or judge) exclusively on the basis of who nominated the individual for a seat on the bench. FDR nominated Felix Frankfurter. Ike nominated William Brennan.
Let’s honor Justice Scalia by placing the focus on the qualifications of a nominee as well as the nominee’s understanding of the judicial role and the rule of law, and not solely on which President makes the nomination.