A few days ago (February 13, 2016), Supreme Court Justice Antonin Scalia died at the age of 79. As you probably know, this event has thrown the American political system, and the 2016 Presidential race, into considerable turmoil. For purely partisan reasons Republicans in the Senate, whose job it is to confirm Scalia’s successor, have stated in no uncertain terms that Obama shouldn’t even try to nominate anyone to replace Justice Scalia for the remainder of his term, and they’ll reject any nominee, sight-unseen, if the President dares to defy them. So now the big question is not, who will Obama nominate?, but rather, Will Scalia be replaced at all? I was thinking about this state of affairs last night, and got a very strong feeling that Scalia’s death, and the political circus surrounding his replacement, may be a moment of considerable historical significance to the future. Partisan politics have now become so intractable and toxic that one of the most basic, important and primal functions of the Constitution is on the verge of being rendered a nullity. Thus, for the survival of our Constitutional system, I strongly believe that Obama should nominate a successor, and that the Senate should confirm one, as quickly as possible–certainly before the election and the end of Obama’s term.
It’s probably worth it to begin by assessing how we got here. Really, Scalia’s death is not that sudden or unprecedented. He was almost 80 and had been on the Court for 30 years. When Obama was reelected in 2012 I recall commenting to a friend that I wouldn’t at all be surprised if he got the chance to make at least one more Supreme Court appointment, and that the next vacancy would probably be one of the “conservative” seats. Politically, Supreme Court confirmations have become increasingly more vituperative since 1986, when Scalia was confirmed fairly easily, as the partisan divide between Republicans and Democrats has grown. Now in 2016 the levels of partisan rancor are higher than ever. The Republican Party itself may be imploding as a result, and the GOP’s level of obstruction and intransigence against literally anything and everything associated with Barack Obama has paralyzed the American government. Not long before Justice Scalia’s death, Obama submitted to Congress his 2016-17 draft budget. The Republicans refused even to give it a hearing. That’s never happened before. This is a sad backdrop against which to project a high-stakes Supreme Court nomination fight, a partisan circus at the best of times. This is not the best of times.
One political party’s hatred of a single politician–this one–is paralyzing the functioning of the United States government. We can’t let it cripple the Supreme Court too.
The truth is, though, that history shows us it’s not supposed to be like this. When the Constitution was created at the Philadelphia convention in 1787, political parties did not exist, at least not in their present form. The funneling of politicians into Federalist and Democratic-Republican camps didn’t get underway in earnest until the 1790s, and while it’s certainly possible that the drafters of the Constitution anticipated there would be political parties, they carefully kept any mention of partisanship out of the final document. Indeed one of the most important ideological underpinnings of the Constitution is the Enlightenment-era idea of “civic virtue,” where democratic citizens must sometimes sacrifice their own self-interest for the good of the society as a whole. Civic virtue was intended to counter partisan impulses. James Madison, one of the Constitution’s chief framers, decried political partisanship in Federalist No. 10, the famous “factions” essay. Though he conceded that “factions” would exist, he counseled that the machinery of government should be arranged in such a way as to prevent one faction from dominating the others. It’s clear, then, that the drafters of the Constitution did not intend its basic functions to be fouled by party politics.
Historically, they haven’t been. America has endured several cycles of extreme partisan competition, most notably in the 1790s, and again in the 1850s, before our current partisan crisis that might be said to have begun in the tumultuous 1960s. Throughout these various crises the basic Constitutional machinery has continued to function, maybe more efficiently, maybe less. The President has nominated people to sit on the Supreme Court, and the Senate has debated and voted on them, usually confirming, sometimes rejecting, but always at least letting the process go forward. And contrary to what Republican leaders disingenuously said this week, it has happened in an election year, most recently in 1988, when a Democratic-controlled Senate confirmed Republican President Ronald Reagan’s nomination of Anthony Kennedy, who sits on the Court today. There was no howl of protest from Democrats then about how Reagan should have waited and let his successor make the pick. It just hasn’t happened. Assertions to the contrary are simply false.
James Madison, father of the Constitution, knew that the existence of “factions” was inevitable, but designed the Constitution to operate independently of them. We seem to have ignored this feature in recent years.
It is, therefore, only naked partisanship that prevents today’s Senate from doing its Constitutional duty in considering an Obama nominee for the Supreme Court. Because Scalia was a “conservative” seat, Republicans are terrified that the next nominee will shift the Court’s political orientation, with profound consequences for many issues from abortion to climate change. But that’s no excuse for tearing down the whole system. The will of a majority of the American people, expressed in November 2012, gave President Obama the authority to nominate people to fill Supreme Court vacancies. He has to do it. And the Senate has to do its job by considering the pick fairly and in a timely fashion–not 11 months from now, but now. (The proposed delay is even more unconscionable when you realize it will probably be futile anyway, since it’s likely the next president will also be a Democrat). Allowing partisanship to foul the gears of Constitutional government is precisely what the drafters of the Constitution hoped to avoid. The irony here is that this conclusion is even more inescapable if you are a “textualist” or an “originalist” about the Constitution, as Justice Scalia was.
The failure of the Senate to observe its Constitutional duty would, I believe, be a severe blow to our Constitution and the fundamental workings of American government. It would signify, once and for all, the final drying-up of the exact lubricant the drafters intended for the gears of government to work: civic virtue. Because the concept of civic virtue is so fundamental to our system, the absence of it means the gears will, sooner or later, stop working entirely. This would be true regardless of which party is in power, or whether a conservative President had the opportunity to replace one of the “liberal” justices. It’s just how the system works. Living in a democracy often means accepting a political result you don’t like.
Antonin Scalia, pictured here with President Ronald Reagan, was confirmed by the Senate in the summer of 1986. The vote in favor was 98 to 0.
Unfortunately, I’m pessimistic. I’ve seen little indication that the Senate thinks in terms of Constitutional obligations and what’s best for America, and our democratic system, as a whole. There’s a lot more evidence that they can’t see beyond their own partisan advantages. As we lay Justice Scalia to rest this week–a dedicated public servant, whatever you might have thought of his opinions–I fear that his death has led us down a path toward a bleak and uncertain future.
Justice Scalia’s replacement should be nominated, considered and confirmed–soon. That’s how our Constitution works.