U.S. Supreme Court justice Antonin Scalia sure didn’t seem to be at death’s door last month when he appeared at Rummel High School in Metairie.
It was a Saturday morning, so he must have arisen with the larks to get there. He strode onto the stage, announced that he had the scoop, as usual, on exactly what the Founding Fathers intended, raised a couple of laughs with tales of his youth and departed after about half an hour. Then, it was off to lunch with his pal, local federal judge Marty Feldman. It was pretty much a vintage Scalia performance.
He remained on the move after that, visiting Hong Kong and Singapore before joining the hunting party at the Texas ranch where he met the kind of quietus we might all wish for, turning in on a Saturday night and failing to wake up Sunday morning.
For a chubby cigarette and pipe smoker with heart ailments, Scalia lasted well. He was a month short of his 80th birthday when he died. He led a charmed life and a cultured one.
He was evidently a Shakespeare enthusiast and reminisced fondly at Rummel about the response of a Jesuit priest at his New York high school when some student had the temerity to knock the Bard: “When you read Shakespeare, Shakespeare’s not on trial; you are.”
He was quite the thespian at Georgetown University and famously bonded at the opera for many years with his ideological opposite on the Supreme Court, Ruth Bader Ginsburg.
For all these blessings, Scalia, as a devout Catholic, would have had no trouble crediting God. God, indeed, was on his mind at Rummel, where he pooh-poohed the modern gloss on the separation of church and state.
The Founding Fathers never intended to be impartial between believers and nonbelievers, according to Scalia. They were on the side of religion, and the Establishment Clause was intended merely to forbid government to favor one version over another. That was hardly the only issue on which his “orginalist” approach chimed with his Catholic faith. He found no right to privacy in the Constitution that would justify abortion, for instance.
Scalia was, nevertheless, capable of suppressing his own views for the sake of constitutional consistency, as when, though abhorring “scruffy” wretches who burn the American flag, he joined the court majority that upheld their First Amendment right to do so.
Otherwise, he was the scourge of the liberals, taking a dim view of gay marriage and affirmative action, for instance, and writing the 5-4 opinion that found the Second Amendment, notwithstanding its reference to “a well-regulated militia,” guaranteed an individual right to bear arms.
We may never see his like again, but, if we do, it won’t be under this president. Supreme Court justices are not always faithful to the ideology of the presidents that nominated them, but it is impossible to imagine that Barack Obama will nominate even the palest imitation of Scalia.
Thus, Republicans are determined to leave the Supreme Court hamstrung into next year, when they hope to have captured the White House. The party line is that the choice should be left to the people, as though the upcoming presidential election were no more than referendum on a court vacancy. This is clearly hogwash; replacing Scalia is just another issue in the race.
The Constitution says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” Supreme Court justices. The people had their say when they twice elected Obama, and, surely, the originalist view would be that Republicans have a constitutional obligation to consider his nominee with an open mind.
That clearly isn’t going to happen. Republicans may make a show of sweet reason and give Obama’s nominee a polite hearing, but obstructionism is deeply ingrained in Washington these days, and confirmation seems out of the question. We are stuck with a 4-4 court for the rest of the Obama presidency, a price Republicans are prepared to pay in hopes of getting one of their own appointed.
Whatever Scalia may have thought about a delay in appointing his successor, he wouldn’t have gone with the shabby pretense that it is due to some democratic principle. Anyone who saw him in action will be certain he had more intellectual honesty than that.
James Gill’s email address is firstname.lastname@example.org.