My old pal Mike from the train used to tell me stories of Nino Scalia, cadet captain, from high school where he was a year behind. It was a Catholic military school, and Mike was Irish. The Irish kids and the Italian kids were always trying to show each other who was “better.” Kids are like that. They hold their identities dear. Too dear.
Some of the stories were funny. Some were about how Nino Scalia was a very tough kid, unyielding in his power over other cadets. All were about a person, a human being. It’s hard to hate a person when they become real rather than a cartoon character, a one-dimensional cutout that can be characterized simply as good or evil. I had the benefit of hearing Mike’s stories. Nino Scalia became a person to me, even though I never met him nor had much chance of hanging out with him to find out for myself.
Justice Scalia wrote decisions that I consider horrible. He also wrote opinions like Crawford, Johnson, Jones, Kyllo, and his dissent in County of Riverside. Ronald Collins runs down his First Amendment opinions. Jonathan Adler sums it up:
Justice Scalia would not invent or discover unwritten rights in the constitution, but he would vote to strictly enforce those that are enumerated, such as the requirement that defendants may confront the witnesses against them or the defendant’s right to a jury trial.
Of course, it’s not that simple. Nor was Justice Scalia that consistent. Nor can it be agreed that he was always true to his originalist/textualist claims, or that he was above allowing his sensibilities to influence his vote. He was imperfect. People are like that.
Justice Scalia’s opinions were, as a charitable person might say, direct and clear. A less kind person might call them acerbic, even offensive, as he pulled few punches. As someone who appreciates clarity, I appreciated his writing, if not his holding. Then again, there were times, such as his errant paragraph in Heller, that he sorely disappointed. No doubt it was of political necessity within the court, but it wasn’t what one expected of Scalia.
This is not to persuade those of you who confine your opinion to one word to characterize someone whose impact on American law has been, and will continue to be, huge. Love him. Hate him. Have mixed feelings about his legacy as I do. You’re allowed to feel whatever you want.
Within minutes of word of Justice Scalia’s shocking passing, the legal world devolved into the banal politics of the day. It’s not surprising. It couldn’t be stopped. But it was still a pathetic reminder that we are a nation of petty people lacking in grace.
It would have been nice to have a moratorium on the politics of the next nomination until Justice Scalia is laid to rest.
— Scott Greenfield (@ScottGreenfield) February 14, 2016
This wasn’t a request, but a lament. We were well past any hope of taking a deep breath before spewing love, hate and political consequences. Sadly, the cancer of knee-jerk reactions metastasized across the Twitters.
Republican presidential candidates said exactly what one would expect of them. Senate Majority Leader Mitch McConnell and Judiciary Chair Chuck Grassley too. And others, eyes wide shut with their politics, rationalized why they were absolutely justified, as true believers are inclined to do.
— Leader McConnell (@SenateMajLdr) February 14, 2016
This is spin. A false argument designed to support those who want to agree, and confuse those who are on the fence. It appeals to American populism, if not intelligence.
It is the president’s prerogative to nominate Justice Scalia’s replacement. We have a president, regardless of what you think of him. He was elected for a four year term, and he has 340 days left. Justice Brandeis’ nomination lingered for 125 days, the longest in our history. It would be irresponsible to believe there is any merit in leaving a seat open for a year.
But that doesn’t mean the Senate is compelled to confirm. Senators, too, are elected, and it is their duty to confirm, or not, a Supreme Court nominee. Some contend that they should refuse to confirm anyone until after the presidential election, as if this is a right. It’s not.
The Senate can vote against confirmation, but they cannot refuse to do their duty because of politics. This has nothing to do with whether you prefer President Obama to whoever succeeds him, but with how our government was constructed to perform, with its checks and balances. Contrary to Grassley’s false assertion, Supreme Court nominations in the last year of a president’s term have historically been confirmed by a Senate majority from the opposing party.
Yet, Bork? That was 1987, almost thirty years ago, and most know of it only from historical stories. No doubt Bork was a brilliant person, but he was also a flagrant and unabashed ideologue. The Senate held hearings and voted not to confirm his nomination. There is good reason to argue that he was qualified to be a Supreme Court justice. There was also good reason to reject his nomination, as he was disinclined to consider argument and deliberate, as he had already made up his mind.
It was also a different time in politics, where there was still some hope of overcoming partisanship for the greater good. Politics has shifted since then. A moderate conservative then would be deemed too liberal today. A moderate liberal then would be deemed too conservative today. The extremes have gotten far more extreme, often joining at the other side of the circle. If you’re part of the extreme, you won’t be able to see this, because of your certainty that you’re right. People are like that.
Over the years, other criminal defense lawyers have scolded me for not hating Nino Scalia as a good team player should. Mea culpa. As much as I may have disagreed with him, I refuse to deny that he was a huge and valuable influence on America law. Justice Scalia was our worst, and sometimes our best, friend on the Supreme Court. People are like that, and Justice Scalia was a real person who will be remembered for his contributions to the law. He deserves to be.