Unsolicited Advice For The Post Scalia Era

I rarely agreed with Justice Antonin Scalia but he had a remarkably influential career, and was one of the dominant figures on the Supreme Court for the last thirty years. He served under three Chief Justices but was the Justice who pushed the court to the right and made originalism/textualism a factor in the nation’s jurisprudence. His opinions were noteworthy, not only for how wrong he was, but for the lively language he used. Clerks draft most of the opinions but Scalia’s dissents seemed to be written by the Justice himself. I must confess to enjoying some of his most scathing dissents, especially when he revived arcane phrases: jiggery-pokery was my personal favorite.

Now that I’ve praised Scalia, I’m glad that we’re burying him. There are a series of important cases that would have pushed the law even further to the right that now look like 4-4 draws. It will be interesting to see how the other Supremes handle these cases. They can put them on hold or allow the lower court rulings to stand. In either event, an eight person Supreme Court isn’t good for the country, which is one of many reasons to be glad the President plans to nominate a replacement some time soon.

It’s obvious that the GOP controlled Senate is going to either slow walk or put in the deep freeze any nomination put forward by President Obama. They’re hoping to win the 2016 election and put a Scalia clone on the court. Ordinarily, I’d give them a 50-50 shot at denying the Dems a third consecutive term but the wild rhetoric in the GOP primary race makes a loss more likely than not. Usually, the Republicans are slyer about calling their opponents liars, leaving the dirty work to surrogates. Slyness has gone by the wayside in the era of the Insult Comedian and Tailgunner Ted. They have the perfect stealth wingnut candidate in John Kasich but he’s not extreme enough for the current GOP; a scary thought given how far to Reagan’s right the Ohio Governor is.

The politics of this situation favor the Democrats. Once again, the Republicans are about to do something only their base could love in giving us an eight Justice court for a year.  It’s irresponsible and makes them look incapable of governing. Of course, their base doesn’t give a shit because they hate guvmint so much but it’s the sort of thing that will alienate Independents and sane Republicans.

You’re probably wondering when I was going to offer POTUS unsolicited advice. Here we go. Slate’s Dahlia Lithwick has compiled a list of Supreme Court candidates and it’s a good one. BUT I have long thought that someone who is NOT a federal judge should be nominated. The Clinton administration has been under attack this year but its Supreme Court appointments were stellar: Ginsburg and Breyer. It was the one that got away that intrigues me. Bill Clinton wanted to nominate a politician to the court and zeroed in on his frenemy Mario Cuomo. But Cuomo was a classic New Yorker who didn’t want to live anywhere else and declined. Twas a pity.

Some of the most distinguished Justices in our history were never judges of any kind before becoming Supremes. The list is staggering: Frankfurter, Black, Douglas, Jackson, Brandeis, and Warren to name a few 20th Century examples. The Warren example was the key to Clinton’s thinking: he’d been California Attorney General, Governor, and Tom Dewey’s running mate in 1948. Warren’s personal and political skills helped unite a fractious court and produced a unanimous decision in Brown vs. Board of Education.

In addition to the Super Chief, there were two outstanding Chief Justices who had been senior Republican pols: Charles Evans Hughes and William Howard Taft. Hughes was the GOP’s 1916 nominee and later secretary of state. Taft, of course, was the 27th President. I’m not sure if there are any candidates of that stature that the sitting President could name but I have some unsolicited advice for the next Democratic President. There’s a man with a calm judicial temperament who used to teach constitutional law at the University of Chicago and would become only the third African-American Justice in our history: Barack Obama.

I realize that’s very unlikely to happen, but I’ve been imbued with the trollish, puckish side of the late Justice Scalia and cannot help myself. We could do a lot worse and if the Republicans win the White House, we certainly will.


3 thoughts on “Unsolicited Advice For The Post Scalia Era

  1. Anita Hill, just to watch Clarence Thomas stroke out.
    p.s. now that Scalia’s gone, who will tell Thomas how to vote?

    1. As was posted on the Driftglass blog, “Reports of Clarence Thomas showing up in John Roberts’ office asking ‘Are you my daddy now?’ remain unconfirmed.”

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