Defining the Job

Things shifted. Justice Scalia died unexpectedly, the Supreme Court is now down to eight justices, four conservatives, essentially four liberals, and decisions on hard issues now will end in a tie – lower court rulings will stand or the eight remaining justices will say come back and argue again next year or the year after that. Nothing will be decided, definitively, for a long time. That’s a bit alarming, but the Senate confirms these justices, and it’s an election year, and the solidly Republican Senate said they’ll do no such thing. Let the people decide. In the full fourth year of a president’s second term, no one has to take him seriously. He no longer matters – the country is deciding its future – he’s part of the past – he’s history – forget him. Everyone knows this.

This was the day that President Obama called them on that:

President Obama on Tuesday challenged Republicans to offer a plausible rationale for refusing to consider a Supreme Court candidate to replace Justice Antonin Scalia, and he pledged to nominate someone with an “outstanding legal mind” who cares about democracy and the rule of law.

“The Constitution is pretty clear about what is supposed to happen now,” Mr. Obama said during a news conference after a meeting in California with leaders of Southeast Asia. He said the Constitution demanded that a president nominate someone for the court and the Senate either confirms or rejects. “There’s no unwritten law that says that it can only be done on off years,” Mr. Obama said. “That’s not in the constitutional text.”

He used to teach constitutional law at the University of Chicago, so he ought to know, but then the Republicans know he knows:

The president spoke hours after Senator Charles E. Grassley, Republican of Iowa and chairman of the Senate Judiciary Committee, said he had not ruled out holding hearings on Mr. Obama’s eventual nominee to replace Justice Scalia on the Supreme Court.

Mr. Grassley’s comments were a modest backtracking of what he said over the weekend, when he concurred with Senator Mitch McConnell, the majority leader, as well as several other Republican senators, who said the Senate should take no action on Mr. Obama’s nominee and the vacancy ought to be filled by the next president.

Far too many Republicans had been catching too much heat on this. Some were breaking ranks, saying their colleagues were making them all look like frightened mindless obstructionists. There were nasty editorials in the home-state newspapers. What are you guys scared of? Grassley had to back down. Senate Majority Leader Mitch McConnell probably will soon. The candidates can’t – the angry base won’t stand for it and there are primaries coming all over the country – but this could screw the winner of all that in the general election – so they’re stuck.

That doesn’t matter now. Obama will send over a name. The Senate Republicans will at least make a show of considering it – they’d look like total jerks otherwise. Then they’ll find some marginally plausible reason to reject the nominee, proving they’re not terrified children. Obama just nominated the wrong sort of person. It’s his fault.

Fine, but who is the right sort of person? Slate’s Dahlia Lithwick addresses that:

An awful lot of people have an awful lot of opinions about the kind of justice Obama might want to appoint. Many of us argue that it’s long past time for a more geographically and religiously diverse Supreme Court. Progressive groups are asking for liberal visionaries and game-changers, in the style of William Brennan. Others want statesmen and politicians (Obama once said he would love to put an Earl Warren on the court) to temper the wonky insularity of the current crop. Others are just asking for some confirmable human. Seat anyone to the left of Justice Scalia and call it a win, they say.

Not so fast – Lithwick argues that Barack Obama already knows exactly what he wants:

This is the culmination of his career-long reflection about the role of the courts and the law in American democracy.

First is an issue that Obama has already seen litigated under the bright lights of an earlier confirmation fight. When Obama sought to replace David Souter at the high court in 2009, the principle quality he said he was searching for in a jurist was “empathy.” You will recall that he almost brought about Armageddon with the suggestion, and that even Sonia Sotomayor, his own empathetic nominee, disavowed that judicial value in her own hearings. Still, he said it.

In May of 2009, he did say this:

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.

She also cites Obama at a 2008 rally in Westerville, Ohio, when he was only running for president:

I want my justice to understand that part of the role of the court is to look out for the people who don’t have political power. The people who are on the outside. The people who aren’t represented. The people who don’t have a lot of money; who don’t have connections. That’s the role of the court.

Lithwick also cites May, 2010, when he named Elena Kagan to replace Justice John Paul Stevens:

She has often referred to Supreme Court Justice Thurgood Marshall, for whom she clerked, as her hero. … She credits him with reminding her that, as she put it, “behind law there are stories – stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law …” That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career…

Lithwick then adds this:

What Obama described then, time and time again, was a judicial capacity to look outside of one’s own life experience and to use the levers of the law and Constitution to help the voiceless and afflicted. Despite the many accolades we are hearing about Justice Scalia this week, that is simply not what he was about… and whatever the glories of textualism, originalism, and judicial humility, the unvarnished truth is that women, minorities, workers, LGBTQ Americans, immigrants, voters, capital defendants, and many others did not live in a world that was better for Justice Scalia’s brilliant mind. And in that sense, Obama could have been describing his ideal jurist as the polar opposite of Scalia.

The do-no-harm thing seems to be important to Obama:

Obama may be a constitutional law professor at heart, but he has been perfectly clear that justices shouldn’t be the drivers of social change, that elections matter. Again, we’re talking about the anti-Scalia in that he really believes that activist jurists, on either side of the aisle, usually do more harm than good.

So, you want a non-activist with empathy, but Lithwick notes a third quality that Obama wants on the bench:

The ability to reach across the aisle and compromise – this was precisely what he celebrated in Kagan when he nominated her to replace Justice Stevens in 2010.

That is what Obama did say back then:

Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament – her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, “of understanding before disagreeing”; her fair-mindedness and skill as a consensus-builder.

These traits were particularly evident during her tenure as dean [of Harvard Law School]. At a time when many believed that the Harvard faculty had gotten a little one-sided in its viewpoint, she sought to recruit prominent conservative scholars and spur a healthy debate on campus. And she encouraged students from all backgrounds to respectfully exchange ideas and seek common ground…

Lithwick then thinks of the dearly departed:

Scalia famously antagonized more than one of his colleagues with his sharp elbows and refusal to compromise. At the very least we can say that Scalia could have had more success with Sandra Day O’Connor, David Souter, and Anthony Kennedy had he gone with the “respectful exchange of ideas” and “common ground” methodology, as opposed to the “my way–highway” purist mode for which he was famed.

And then she points out the obvious:

Each of these impulses argues for a nominee who looks and sounds a lot like, well, Obama. In other words, I suspect if Obama were to construct his platonic Scalia replacement it would be a Justice Obama – an idea floated just last month by Hillary Clinton. Obama has now proven twice with his Supreme Court picks- and many times with his lower court nominations – that empathy, restraint, and the ability to reach across the ideological aisle matter a lot to him.

There is no Republican that thinks that way, so all of that is moot, but the Republican love of Scalia, shared by many liberals, who only respect him for his mind of course, is puzzling. Peter Shane, who teaches constitutional law at Ohio State, struggles with that in How Antonin Scalia Punched Down:

The encomiums bestowed upon the late Justice Antonin Scalia know no partisan limits. Tributes from conservatives have been earnest and effusive, untroubled, of course, by philosophical disagreement. But the homages that begin, “Although we agreed about nothing,” have been no less heartfelt or expansive. Many across the ideological spectrum were privileged to experience Justice Scalia as a warm, generous, witty, charming, larger-than-life companion and mentor.

Shane didn’t see that:

The worst of these moments occurred when he lectured at my law school on originalism, his favored approach to constitutional interpretation. One of his first questioners from the audience was an audibly nervous law student. She asked whether we might owe less allegiance to the precise views of our constitution’s drafters and ratifiers, given that women, African-Americans, and Native Americans were excluded from those roles. Justice Scalia all but sneered in response, “Well, it’s obvious you just don’t believe in the idea of a constitution!”

It’s one thing to bare one’s teeth to another justice or even to a combative law professor. To scoff sarcastically – and, one must add, nonsensically – at a nervous student just felt like bullying.

We all have our worst moments, but witnessing that encounter inevitably complicated for me any future appreciation of the Antonin Scalia that even my liberal friends who knew him describe so earnestly.

That sort of thing makes Shane ambivalent about the guy:

As late as the 1980s, when Professor Scalia became Judge and then Justice Scalia, “originalism” in constitutional interpretation and “textualism” in statutory interpretation lived largely at the margins of contemporary legal thought. In uniting mostly right-wing politics with a vigorous theoretical defense of both methods, Scalia laid the cornerstone for an edifice of conservative legal thought that has had an incalculable impact on thirty years of American law. That edifice will frame constitutional advocacy both within and beyond the judiciary for many more decades.

Justice Scalia’s work thus stands as an enormous institutional achievement, although driven, at least in my estimation, as much by the man’s prose style and charisma as by the intrinsic merits of his ideas. His forcefulness, however, hugely enriched American law by provoking a far deeper and more serious engagement with interpretive theory, by both his advocates and detractors, than had been seen in the decades preceding his ascent. His engagement strengthened both sides.

At the same time, Justice Scalia routinely deployed his methods largely in service of bad causes. In cases on race and sex discrimination, the rights of gays and lesbians, the Eighth Amendment, voting rights, consumer rights, environmental law – pretty much every cause progressives have embraced since the New Deal – he voted the positions of a committed revanchist determined to turn back the political and jurisprudential clock.

Almost as bad, in both dissents and separate concurrences, Justice Scalia was famously prone to lace his analyses with scorn and ridicule for those with whom he disagreed. These were and are texts destined to be read by generations of lawyers and law students, as well as by the general public. They are regrettable not only in their lack of professionalism but because they no doubt help to legitimate a corrosive form of intellectual discourse which confuses contempt with reason.

For a corrosive form of intellectual discourse which confuses contempt with reason, see Donald Trump or anyone else on that side of things. They want brilliant contempt restored to the Supreme Court.

That may seem absurd, and in 2014 at Washington Monthly, Michael O’Donnell wrote an interesting book review of Bruce Allen Murphy’s “Scalia: A Court of One” that contained this:

Somewhere in the mid-2000s, Scalia ceased to be a powerhouse jurist and became a crank. He began thumbing his nose at the ethical conventions that guide justices, giving provocative speeches about matters likely to come before the Court. He declined to recuse himself from cases where he had consorted with one of the parties -including, famously, Vice President Dick Cheney. He turned up the invective in his decisions. His colleagues’ reasoning ceased to be merely unpersuasive; it was “preposterous,” “at war with reason,” “not merely naive, but absurd,” “patently incorrect,” and “transparently false.” More and more, he seemed willing to bend his own rules to achieve conservative results in areas of concern to social conservatives, like affirmative action, gay rights, abortion, gun ownership, and the death penalty. Above all, Scalia stopped trying to persuade others. He became the judicial equivalent of Rush Limbaugh, who has made a career of preaching to the choir. But Limbaugh is not merely a shock jock; he is also a kingmaker. Scalia’s position on the bench precludes any such influence. As a result, he has more fans than power.

Now O’Donnell says this:

I will remember Scalia mainly for the ugliness that permeated his opinions. He once wrote with astonishing callousness that it is not unconstitutional to execute an innocent person if that person has received a fair trial. He described affirmative action as “racial discrimination,” and mocked the notion that it could help students achieve “cross-racial understanding.” (No one squeezed more sarcasm out of a quotation mark.) A devout Roman Catholic, Scalia harbored a particular scorn for “the homosexual agenda,” writing in a paper-thin third-person: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Scalia had been slipping lately. He made a spectacle of himself before journalists, flipping his chin at them and giving needlessly provocative speeches. He openly flouted the Court’s recusal traditions, going on a hunting trip with Dick Cheney and then refusing to recuse himself from a suit against the vice president. He engaged in an unseemly public spat with Judge Richard Posner, going so far as to call Posner a liar after Posner panned Scalia’s latest book. The invective in his opinions and his behavior at oral argument had become truly outrageous, and caused many a citizen to associate the Supreme Court with cheap partisan point-scoring. It has been a long fall for what had been one of the most trusted institutions in government.

David Atkins cites those passages and adds this:

The conservative movement is trying to treat Scalia as a giant of law and one of America’s greatest and most influential jurists. I’m not so sure about that. His position on the court, and his votes in some crucial 5-4 decisions, have obviously made a gigantic impact, but it’s not at all clear that his arguments will have had generations-long precedent-carrying weight. Particularly toward the end of his career he simply became a reliable tool of retrograde social conservative orthodoxy and corporate power. Scalia ceased to be interesting because you always knew exactly where he would stand, and that every year he would say something eyebrow-raising-nasty and clueless about evolution, the sexual revolution or some similar topic. In that sense, I would argue that John Roberts has actually been more interesting and influential recently because one can at least speculate on potentially unconventional arguments and stances he might take.

In the end, what many characterized as Scalia’s incisive wit and questioning simply became boring, because it was always in the service of the same agenda, rendering it devoid of truly honest insight. Scalia simply became as boring as your conservative uncle at Thanksgiving. …

I understand and can sympathize with how upset conservatives are about their loss and about the potential for the shifting of the ideology of the court. But let’s not pretend that the court lost a legal giant on the level of Brandeis, Holmes or Marshall. It didn’t.

As for that unseemly public spat with Judge Richard Posner, Eric Posner, his son and a professor at the University of Chicago Law School, sees a tragedy here:

Antonin Scalia, who died over the weekend at 79, was the most colorful Supreme Court justice of recent memory. He liked to break open the thesaurus and harangue his colleagues with obscure insults, calling their work product “legalistic argle-bargle” in one memorable dissent. He wrote well and, in off-the-radar-opinions on politically obscure but important legal questions, he often out-analyzed his colleagues. On the bigger questions, however, his legacy is murky.

Scalia was a reliable vote on the right side of the spectrum, but he frequently found himself in dissent, despite serving on a court staffed mostly by Republican-appointed justices during his entire career. Conservatives will forever be grateful for his role in securing gun rights in District of Columbia v. Heller and blocking campaign finance reform in Citizens United and other major cases. But he failed to stop the same-sex marriage juggernaut (his Republican colleague Justice Anthony Kennedy defected) or Obamacare (Chief Justice John Roberts absconded), to eliminate abortion rights, or to defeat affirmative action. These were all issues close to his heart and of great importance to the conservative legal movement. These defeats will forever mar his legacy of success as a conservative champion.

It is odd that conservatives love this guy who seldom won anything for them, but then his approach to the law was flawed:

Scalia is most famous for championing the judicial philosophy of originalism, which says that the Supreme Court should interpret the Constitution as it was understood at the time of its ratification (or at the ratification of individual amendments). He worked tirelessly to persuade his colleagues and the legal community that originalism was the only proper mode of constitutional decision-making. In Heller, he achieved a victory of sorts: Both he and Justice John Paul Stevens, who wrote the dissent, relied heavily on sources from the founding era. But even here, there is less than meets the eye. Heller notwithstanding, Scalia failed to convert his colleagues.

Only Justice Clarence Thomas, who has become increasingly isolated, has tried to use originalism in a consistent way. The three other Republican-appointed justices – Roberts, Kennedy, and Samuel Alito – are not originalists, nor are the four justices appointed by Democratic presidents. These justices decide cases the way justices always have: by using whatever materials at hand – historical sources, yes, but also (and mainly) judicial precedents, common sense, general principles, political values, and so on – to generate outcomes that pretty reliably track their ideological priors.

Scalia argued that justices who committed themselves to originalism could not make such ideologically self-interested decisions. He cited himself as an example. …

He considered himself a conservative but denied that he ruled conservatively. While the other justices ritualistically denied that politics should play a role in their decision-making, only he really meant it – or at least seemed to. His anguished complaints that other justices voted ideologically were met with puzzled silence. Of course, they voted ideologically; what else would they do?

Scalia just didn’t get it:

Scalia refused to acknowledge that originalism does not enable justices to decide cases neutrally. If they choose to adopt this methodology, and manage to figure out a way to make it constrain them, they are committed to enforcing mostly 18th-century values – which are, by definition, conservative.

It doesn’t take much imagination to see Scalia’s belligerent insistence that nearly every other justice on the court is politically motivated, even as he flamboyantly identified himself with the political right, as a factor in that decline. This is the tragedy of Justice Scalia. He thought he could remove politics from the Supreme Court, but he only made them worse.

Ah, but maybe that was the whole idea, and why the Republicans want another Scalia. This is an advocacy position. Lay out the conservative point of view with stinging contempt and total scorn for the other side, even if you lose on key issues again and again – be brilliant at that. That’s the job description. It’s a public relations position. Obama has long said that the job is empathy, restraint, and the ability to reach across the ideological aisle – to get sensible things done for vulnerable people – not that it matters much now. We’ll have neither. Let the people decide in November.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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