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The End of the Scalia Era

I met Justice Scalia only once. He spoke at Washington University in St. Louis while I was president of the College Republicans there, and I attend a lunch with him and a half-dozen faculty and other students. What stands out in my memory is Scalia’s answer to a professor who asked whether he objected to demographic quotas on the Supreme Court—that is, whether the idea that there now had to be at least one black justice, at least one female justice, etc., was a problem. Scalia cheerfully said it was not, as long as those who filled the quotas were qualified. After all, there had been quotas of other kinds in the past, he noted, such as a requirement that the court should have a distinct Southern representation.

Scalia’s death throws into question another, more important balance on the court, the ideological one. Senate Majority Leader Mitch McConnell and all the Republican candidates on stage in South Carolina on Saturday night said that President Obama should not bother trying to nominate anyone to fill Scalia’s vacancy. Let the next president make the appointment, they say, and let this be something voters decide when they choose that president in November. In terms of textbook civics the suggestion is appalling, but the political realities are clear-cut: a Republican Senate—indeed, a Republican judiciary committee—will not grant a lame-duck Democratic president a chance to replace a Republican justice in an election year. The court had a 5-4 Republican majority before Scalia’s death, though the mercurial Anthony Kennedy—Scalia’s fellow Reagan appointee—kept the court from reliably aligning with the Republican right. Even the most moderate Obama appointee would give America the most liberal and Democratic court in 30 years.

Republicans are, of course, taking a risk: should a Democrat be elected as president in November with significant coattails in Senate races, the result would be a much stronger hand for a successor from Obama’s party to play in picking judges. But some Republicans see the risk as a clarifying one—indeed, as something that will unify the party around an electable candidate, one not named Donald Trump. The GOP establishment certainly sees the case for a candidate like Marco Rubio or Jeb Bush strengthened by this turn, while Ted Cruz, the only 2016 aspirant with judicial experience, is banking on it helping him. Trump has so far defied the litmus tests of movement-conservative orthodoxy, but the idea that one must vote for a viable Republican for the sake of getting Supreme Court justices who will re-moralize America and defend free markets through their constitutional jurisprudence remains a knockdown argument for many voters on the right.

No matter what happens, conservatives who hope that Supreme Court appointments will turn the tide of the culture war are apt to be disappointed. Since the brutal Robert Bork hearings, a generation of lawyers aspiring to land on the Supreme Court one day has learned to keep quiet about controversial subjects. That first of all makes identifying reliably right-wing nominees difficult, and it further means that having acquired a habit of avoiding conflict even a right-leaning nominee might not have much spirit for battle once on the court. Certainly it’s hard to imagine any new justice following Scalia’s example as an outspoken cultural combatant. Justice Alito is not quite another Scalia, and future justices promise to be more in the mold of John Roberts.

For this reason, even if movement conservatism enjoys a brief renewal of its consensus in the wake of Scalia’s death, in the long run Scalia will be seen as the last really unifying figure of the postwar American right. Paleoconservatives and right-leaning libertarians, as well as the establishment right, idolized Scalia, and the promise of another Scalia kept them all in the Republican Party—or at least voting for Republican presidents [1]. Scalia was the embodiment of conservative opposition to the liberal jurisprudence of the ’60s and ’70s, and that opposition was the glue that held the conservative movement together over the last 40 years, as the end of the Cold War and the waning electoral power of welfare liberalism attenuated other sources of unity.

Ironically, the best chance the Reagan right might have for gaining a new lease on life, in an era when talk about tax cuts and military build-ups has become passe, could rest with a revival of judicial liberalism. But probably even that would not restore the matrix out of which the Reagan consensus came. War, immigration, trade, and political correctness are the issues that quicken conservatives’ pulses these days, and the Supreme Court is not the left’s driving force in any of them. That could change—but until it does, the right will be more divided by policy differences than unified by a common foe in the judiciary.

Antonin Scalia was a titan of his time. But there are no more Scalias waiting to take the stage, and in the years to come the Supreme Court may not be the stage that matters most.

31 Comments (Open | Close)

31 Comments To "The End of the Scalia Era"

#1 Comment By Winston On February 14, 2016 @ 2:54 am

[2]
Antonin Scalia Dead: Supreme Court Justice’s Five Most Controversial Opinions

#2 Comment By balconesfault On February 14, 2016 @ 4:42 am

In terms of textbook civics the suggestion is appalling,

In honor of this site being named “The American Conservative” … shouldn’t the discussion of whether the Senate should make up special Obama rules stop there?

#3 Comment By Kurt Gayle On February 14, 2016 @ 8:43 am

At least you’re predictable, Daniel – fronting once again for the Republican Party Establishment — the quintessential Un-Trump!

Forever trying to find some way to rationalize away the issue-based discontent sweeping the Party. Forever trying to push Republicans to nominate Establishment toadies “Marco Rubio or Jeb Bush…something that will unify the party around an electable candidate, one not named Donald Trump.”

Daniel McCarthy, who says “one must vote for a viable Republican for the sake of getting Supreme Court justices who will re-moralize America and defend free markets through their constitutional jurisprudence…”

As if Establishment Republican Party presidents have gotten us “Supreme Court justices who will re-moralize America… through their constitutional jurisprudence…”:

View the disaster of the past half-century of Republican Supreme Court nominees:

Nixon — Harry Blackman (who wrote the Court’s opinion in Roe vs. Wade) and Lewis Powell (who voted with the majority in Roe).

Ford — John Paul Stevens (voted with other Court liberals on abortion and gay rights)

Reagan — Sandra Day O’Connor (voted to protect Roe vs. Wade decision) and Anthony Kennedy (who voted to uphold Roe and who wrote historic pro-gay rights opinions Lawrence vs. Texas and Obergefell vs. Hodges).

George H.W. Bush — David Souter (who voted with pro-abortion justices in Planned Parenthood vs. Casey, etc.)

Enough of the Republican Party Establishment hypocrisy!

#4 Comment By TB On February 14, 2016 @ 8:53 am

Legacy:
1.Justice Scalia’s son worked for the law firm representing Bush in the Bush v. Gore landmark case and failed to recuse himself. (Thomas’ wife worked on the Bush transition team and he failed to recuse himself, too.) The aftershocks of that decision continue in Mesopotamia and here at home.

2. DC v Heller- Let no one be fooled. Scalia was NOT an Originalist, despite his claim to the contrary,and his Washington DC v. Heller opinion proved it. Scalia, and all legal scholars, have always emphasized that the preamble of a statute or Constitutional Amendment is a vital insight which illuminates context and meaning to a given statute. In the case of Heller, however, he dismisses the clause (“A well regulated militia, being necessary to the security of a free state…). The contextualizing phrase implies that the Second Amendment, which creates a right “to keep and bear arms”, is not about personal weapons ownership. It actually forbids the federal government from disarming state militias. Scalia treated the Second’s preamble dismissively. He also ignored the commonly understood usage of the words “bear arms” and militia” as having military application.

#5 Comment By Texas tory On February 14, 2016 @ 9:42 am

Sadly, the Court has not been a conservative court. Justice Kennedy has undermined that.

#6 Comment By SteveM On February 14, 2016 @ 1:10 pm

Again, find my opinion congruent with Kurt Gayle’s

And re: “War, immigration, trade, and political correctness are the issues that quicken conservatives’ pulses these days”

That statement is the equivalent of two blind men feeling different parts of an elephant. I.e. it depends on what flavor of conservatism Daniel McCarthy is referencing.

For “movement” conservatives, (Conservatism Inc.), their pulses are quickened by more war, Security State and Global Cop hegemony, massive immigration for their corporate Crony backers who want cheap labor as long as the immigrants can’t vote. And trade deals to further sell out the American worker in obeisance to the Crony signal callers.

Political Correctness is cheap grace sop to the rube Americans in flyover country to get them to support the Crony Nomenklatura in Washington that is selling them down the river.

I suppose a non-liberal Supreme Court justice nominated by a Conservatism Inc. oriented president would be better than nothing – but not by much…

#7 Comment By Thaddeus On February 14, 2016 @ 1:20 pm

“But some Republicans see the risk as a clarifying one—indeed, as something that will unify the party around an electable candidate, one not named Donald Trump.”

Hilarious, as Trump is easily the most electable of the candidates, as New Hampshire proved. He wins most demographics.

“In terms of textbook civics the suggestion is appalling”

What’s appalling is anyone in the right caring about this, when the Left doesn’t. The Right has been losing because it’s followed the rules while the Left hasn’t.

What Trump understands is that it’s time to stop playing to lose, so long as it permits one to virtue signal to liberals — which is what the pre-Trump right has been doing — and time to start playing to win.

#8 Comment By redfish On February 14, 2016 @ 1:49 pm

@TB,

You have to know, that’s an anachronistic understanding of what the militia was.

The militia was a voluntary, self-driven force that would be created at the local level — not the state level — as a way to protect the local residents. They were regulated at the state level, because they had to coordinate beyond local townships, especially with regard to enforcing state laws and legal standards.

But there was no professional police — they didn’t exist yet — so a township relied on its citizens to enforce the law, and this often in practice meant citizens’ arrests and using posse comitatus to bring in residents into law enforcement. This nature of a militia — as involving every free citizen acting and coming together in self-defense — was essential to the Second Amendment. The Framers said, specifically, that they supported a militia because it avoided the creation of a standing army — which they saw as a great evil. They quoted historical examples in England of how local militias arose in revolt to defeat oppressive barons, to argue why ownership of arms had to be a fundamental right.

Handing right to arms ownership only to a select number of men would in essence create a standing army, and defeat the point.

Back to the article,

No matter what happens, conservatives who hope that Supreme Court appointments will turn the tide of the culture war are apt to be disappointed.

That would be missing the point, anyway. Supreme Court appointments should turn the tide of Constitutional interpretation, not some outlying, nebulous culture war. The point of originalism is that its not the Court’s job to give a right to abortion or same-sex marriage. But the legislature could always do that, and conservatives could lose in the legislature.

That first of all makes identifying reliably right-wing nominees difficult…

Again, it would be missing the point. You could in theory be left-wing politically, but an originalist in Constitutional interpretation. I don’t consider myself a conservative, but I believe the original public understanding is important to the job of the court.

Justice Alito is not quite another Scalia, and future justices promise to be more in the mold of John Roberts.

Yes, Roberts has acted like a politician on the Court. But part of his motive as far as that goes is that the Court is currently split. But continual politics and compromise on the bench only matters as far as the Court continues to be split.

#9 Comment By Casimir On February 14, 2016 @ 1:58 pm

A lame duck is a politician still in office after his successor has been elected. Obama will be a lame duck 267 days from now.

Daniel McCarthy the fourth Republican I’ve spotted calling Obama a lame duck in the last 24 hours. It’s not accidental – there’s no principled reason that Obama’s nominee should be blocked, so something must be invented. This sounds truthy and won’t be questioned by the true believers.

Why the Republicans can’t just admit this is 100% political is beyond me. Sheer force of habit? Everybody understands what’s going on and nobody’s saying the Republicans can’t do it (just that they shouldn’t). So why not just say it? I’m afraid the answer may be that the Republicans aren’t lying to the opposition, they’re lying to themselves. They apparently need to believe that they’re operating on some principle even when a blind child can tell they’re not. How… adorable? Pathetic? Frightening?

#10 Comment By William Dalton On February 14, 2016 @ 2:53 pm

I think Thaddeus is right. If the Republicans hold Scalia’s seat on the Supreme Court in play for the Fall elections, it doesn’t matter who the GOP nominee is, Trump, Cruz, Bush, Rubio, Kasich, as unacceptable as each may be to some element of the party, even Trump, who is unacceptable to most, (and I still hope a deadlocked convention will settle upon Rand Paul), Republicans will unite behind this year’s candidate in a way they couldn’t behind McCain or Romney. The one thing they will all agree is that any Republican’s nominee to fill Scalia’s seat, gamble though it may be, is a better bet than the certain calamity which awaits if a Democrat fills it. And if these heretofore missing Republicans turn out for the Presdential contest, they will make the difference in any doubtful U.S. Senate races as well.

#11 Comment By Richard M On February 14, 2016 @ 3:44 pm

Hello TB,

1.Justice Scalia’s son worked for the law firm representing Bush in the Bush v. Gore landmark case and failed to recuse himself.

All right, fair enough; but on this standard for recusal, Scalia in Bush v. Gore would be far from the only recusal that should have happened, but did not. And Scalia reasonably recognized that. Title 28, Section 455 doesn’t spell out the grounds in detail, and justices are the final arbiters. Elena Kagan (a close friend of Scalia, BTW, who actually quietly lobbied to have her appointed by Obama) had even better grounds for recusal in the ACA cases, since she was heavily involved in drafting the law – yet she did not. In short, this is a bigger problem than Scalia, to the extent that it *is* a problem.

(And either way, Bush would have become president, even if Scalia had recused himself.)

2. DC v Heller- Let no one be fooled. Scalia was NOT an Originalist, despite his claim to the contrary,and his Washington DC v. Heller opinion proved it.

Redfish has explained this pretty well. When the 2nd Amendment was drafted, “Militia” was understood to mean any able-bodied adult male in a community. It was not understood to be a regular professional military formation, which is what the National Guard and Army Reserve really are. And there was a reason for that. The Founders and ratifiers were for the most part distrustful of a standing army.

#12 Comment By Richard M On February 14, 2016 @ 3:48 pm

Daniel’s best line: “No matter what happens, conservatives who hope that Supreme Court appointments will turn the tide of the culture war are apt to be disappointed.”

Indeed. Because not only are politics downstream from culture, but so are the courts, to some real degree. Which is not to say that courts *don’t* have some impact on how the “culture wars” play out; but if you’ve lost the culture – especially, in this case, the legal culture – it is going to be difficult to have the courts win that turf back for you.

This is not to say that conservatives should not fight to get originalist jurists on the Supreme Court and lower benches. They should. But mainly because this is a worthy end in itself as a way of upholding the rule of law, and primarily because it’s a defensive measure. It is not going to be a decisive victory in any culture war, only – at best – a rear-guard action.

#13 Comment By chas On February 14, 2016 @ 4:10 pm

Judge Bork was a critical nomination at the time. We would not be where we are now had he been approved. All that to say that this seat is critical. They had better find a way to replace Scalia with someone of his same disposition and philosophy or we are really over as a country. And I know any of those candidates for president (any of them) on the Republican side would nominate the right person.

#14 Comment By EngineerScotty On February 14, 2016 @ 4:38 pm

As a liberal, I gotta say Mitch McConnell (yet alone Ted Cruz, who has threatened a filibuster should McConnell cave) is being utterly stupid here, and playing into Obama’s hands, by refusing to consider a nominee.

Instead, he should simply say:

“Of course, we will consider any nomination the President wishes to put forth, and we will any reasonable nomination a result on the floor. But I cannot imagine that any nominee the President might like receiving fifty votes from this chamber, but Mr. Obama is welcome to try”.

The GOP, in being procedurally obstructionist rather than simply exercising their perogative to vote “no”, is acting as though it is still the minority party in the Senate, not the party that wields the gavel. That may comport well with GOP/Tea Party political pretense–to be outsiders trying to crash a corrupt leftist establishment–but such a ploy is laughable to anyone with sense, and leads to piss-poor tactics.

#15 Comment By EngineerScotty On February 14, 2016 @ 4:43 pm

After all, Robert Bork–nominated near the end of Reagan’s second term, though not in the final year–received a vote in the Democratic-controlled Senate; consideration of his nomination was neither prevented by Senate leadership, nor subjected to any filibuster. That didn’t stop the Senate from denying him a seat on the Court.

#16 Comment By JonF On February 14, 2016 @ 5:14 pm

Re: Handing right to arms ownership only to a select number of men would in essence create a standing army, and defeat the point.

However the militias proved to be incompetent and incapable of proving true defense and we went with a standing army (in George Washington’s day). The US does not have Switzerland’s geography and we can’t hope to defend our borders (let along the sea lanes) with a citizen force. Moreover professional policing was soon introduced as well and it is likewise a necessity.

#17 Comment By JonF On February 14, 2016 @ 5:21 pm

Re: We would not be where we are now had he been approved. All that to say that this seat is critical.

Hardly. If they can cut a deal with Obama to appoint a milquetoast moderate, then take the presidency in November, and retain the Senate, it’s all but certain that Justice Ginsburg will be leaving under the next president, allowing a GOP president to appoint her successor– ending up with the court moved rightward. Whatever happens, the crucial thing for the GOP is to win in November. If they obstruct a replacement all this year, and they lose the November vote, they’ll end up with an outright liberal.

Re: They had better find a way to replace Scalia with someone of his same disposition and philosophy or we are really over as a country.

Ridiculous hyperbole. As others have pointed out, the Court was hardly a rightwing Court with Scalia on it (except when toadying to corporate interests and rubber-stamping the security state and most presidential power grabs).

#18 Comment By Jeremy On February 14, 2016 @ 5:48 pm

Antony: Here was a Scalia. When comes such another?

-William Shakespeare

#19 Comment By Clint On February 14, 2016 @ 6:10 pm

McConnell will delay this Supreme nomination and confirmation until the next president takes office. Harry Reid would have done the same, if the situation was reversed and Romney was the lame duck.
To advise otherwise, is about as effective as telling Trump that his policy on immigration would never sell to the voters.

#20 Comment By chas On February 14, 2016 @ 9:33 pm

Ridiculous hyperbole. As others have pointed out, the Court was hardly a rightwing Court with Scalia on it (except when toadying to corporate interests and rubber-stamping the security state and most presidential power grabs).

I don’t agree. No telling how much more liberal the court could have been without his influence.

#21 Comment By max skinner On February 14, 2016 @ 11:16 pm

If a Democrat wins the presidency, how long will McConnell and fellow Senators hold off on hearings?

#22 Comment By scarcelight On February 15, 2016 @ 12:07 am

@Clint
“Harry Reid would have done the same, if the situation was reversed and Romney was the lame duck.

Do you and the author of the piece above just not know what lame duck means, or are you pretending to not know?

#23 Comment By William Burns On February 15, 2016 @ 9:57 am

The idea that it is now, post-Bork, hard to find reliably right-wing justices has it exactly backwards. Membership in the Federalist society, participation in right-wing patronage networks, all of these things make it easier than ever to find Alito-type justices. The last Justice to really surprise anyone was David Souter, and that was a different era.

#24 Comment By Calvin On February 15, 2016 @ 1:51 pm

Would that the sound of my eyes rolling be somehow transmitted through the internet at the comment “They had better find a way to replace Scalia with someone of his same disposition and philosophy or we are really over as a country.

Typical ridiculous apocalyptic hand-wringing. The United States of America has persisted for two hundred years without Scalia, and will likely persist several hundred more in his absence. In the eventuality that we cease to be a country, it will have little to do with not having an Antonin Scalia sitting on a Supreme Court bench. The Court has been liberal and conservative and back again – and while I will emphatically not miss him and his selectively-applied “Originalist” rulings, I’ve no delusions that this somehow ushers in an eternal paradise of progressive jurisprudence on the Supreme Court. The Court will ebb and flow as it always has, and this too shall pass.

The fight to prevent President Obama (who is not a lame duck yet, by the way) from having a nominee even be brought up for consideration is emblematic of the current GOP to me. They would rather bet it all on a win in November than do the actual work of governing and provide input into the president’s nominee. Like most of their obstructionist antics, this will probably backfire on them, and they’ll wind up with an actual flaming liberal if/when a Democrat wins in November. They consistently bet double or nothing on every problem that comes before them, and instead of pushing Obama to nominate a more rightward judge than he might otherwise prefer, they’re going to wind up losing the Senate and having to stomach whoever Hillary puts up there.

#25 Comment By Clint On February 15, 2016 @ 5:52 pm

The fight to prevent President Obama (who is not a lame duck yet, by the way) from having a nominee even be brought up for consideration is emblematic of the current GOP to me

A president elected to a second term is sometimes seen as being a lame duck from early in the second term, because presidents are barred from contesting a term four years later, and is thus freer to take politically unpopular action

Harry Reid’s obstructionism used against GOP candidates

[3]

#26 Comment By EngineerScotty On February 16, 2016 @ 1:14 am

Generally, a lame duck is a President who is either a) lost the confidence of his own conference/party, or b) is so close to the end of his term that any demands issued can be ignored–in other words, someone with no political capital left.

Generally, it is understood that outgoing Presidents during the November-January interregnum–whose primary concern is transitioning the office to their successor–are lame ducks. This is especially true if the outgoing President was defeated in a re-election bid, or suffered the fate of LBJ (declining to run when not term-limited due to massive unpopularity).

As far as Obama is concerned–although he is barred from running again, he enjoys the support of his caucus, and last I checked has a positive approval rating: he does have political capital to expend, so calling him a lame duck at this point is probably wishful thinking. (George W. Bush, OTOH, was not welcome at his own party’s nominating convention).

But after November, Obama will be a lame duck–were another Court vacancy to occur then, those wanting it filled by his successor would have a stronger case. Of course, by then we will know who the President-elect is, whereas gaming the current scenario is complicated by the fact we don’t know who would pick Scalia’s successor if Obama fails to secure a nomination.

#27 Comment By CharleyCarp On February 16, 2016 @ 9:54 am

So, when was Chief Justice Marshall nominated and confirmed? Too bad that didn’t work out.

I’m sure if the people involved (including Adams and Marhall himself) had better understood the intentions of the Founders, they wouldn’t have even thought of having a chief justice appointed so late in a presidential term.

#28 Comment By Clint On February 16, 2016 @ 12:06 pm

he(Obama) enjoys the support of his caucus, and last I checked has a positive approval rating:
That would be wrong. Better check gain.
[4]!

#29 Comment By AndyG On February 16, 2016 @ 7:59 pm

The truly sad part is that Obama will nominate a judge who is extremely well qualified and fairly neutral politically, and the McConnell crowd will make fools of themselves by covering their eyes and refusing to consider an excellent candidate.
Hoping that you can nominate a highly partisan candidate, instead, shows that the Constitution has been put aside for this episode.

#30 Comment By Bill On February 18, 2016 @ 3:29 pm

“No matter what happens, conservatives who hope that Supreme Court appointments will turn the tide of the culture war are apt to be disappointed.”

This is a straw-man argument. How many conservatives expect the Supreme Court to ‘turn the tide of the culture war’? I certainly don’t know any of them.

The matter is rather one of fear of an activist, Constitution-disregarding Court that fights a culture war against traditional America.

When controversial public policy decisions are made by politicians, citizens have recourse through democratic processes. When they are made by the Court, the only recourse involves a Constitutional crisis. Moreover, activist Court decisions, by their very nature, tend to be more polarizing and harmful to the social/political fabric than legislative actions. The U.S. has suffered from enough of this; it is certainly reasonable to want to stop the situation from getting worse.

#31 Comment By Barry On March 28, 2016 @ 8:44 pm

max skinner says:

“If a Democrat wins the presidency, how long will McConnell and fellow Senators hold off on hearings?”

Who says that Obama doesn’t immediately withdraw the nomination? The GOP is betting that they’ll win. If they don’t, well, they lose.