The United States Supreme Court recently lost a legal colossus in Associate Justice Antonin ‘Tony’ Scalia.
A colourful, dogmatic and outspoken veteran of the Supreme Court, Justice Scalia, 79, was found dead in his Texas ranch in February. Nominated by President Ronald Reagan, he was very much a believer in the ‘originalism’ of the Constitution as the fundamental basis of US law and legal policy. Tony Scalia was as famous for his stubbornly held views as well as his sharp legal intellect and reasoning. Sparing in his agreement or praise, he had many critics who still admired him.
His death is a sad loss to the Supreme Court – and a great loss to the American legal sector. Even his critics (of which he had many) admit that he was a man of principle, who never budged from those principles, and worked tirelessly to uphold the principles of the American legal system and the Constitution. Although his verdicts were unpopular with many – he was respected and revered as a great legal intellect. Outspoken and brash, woe before any unprepared attorney who appeared before him. Even the best prepared, and soundest, legal arguments often fell foul of his biting wit, and withering put downs in open court if he disagreed.
As tragic as it is, the business of the Supreme Court has to carry on as normal; the Court still has a full docket of cases to decide upon. As such, whilst the eight Justices led by Chief Justice John D Roberts Jnr are resuming hearing cases – a ninth Supreme Court Judge needs to be sworn in as soon as is conveniently possible.
The additional issue here is that American politics, and the Executive, Congress, Senate and the legal and administrative systems are currently rather preoccupied. The circus that is the American Presidential cycle had started – and shows no signs of ceasing until the last vote is cast in November. At this time, any nominee for a high office (such as Supreme Court Judge) is fraught with political risk, implications, and a knock on impact upon the election cycle.
The major furore such a vacancy causes at this time is whether it should indeed be filled now. When announcing his firm intention to fill the vacant seat now, President Obama (probably relieved not to be taking part in the Election circus this time) came under great criticism.
According to members of the Executive, Republican and even some Democrat politicians and policymakers, Mr Obama should not be nominating another (his third) Justice to the Supreme bench, but should rather leave that to his successor, whoever it is. This viewpoint has a lot of supporters.
In filling a vacancy on the federal Supreme Court, it is essentially an opportunity for a President to leave his mark on the American legal system, and to shape the Supreme Court. With Mr Obama about to hand over the White House, this is an early opportunity for a new President to have a lasting impact on the laws of the nation. As such, a nomination should be delayed.
Although protocol in this demands a new Judge be appointed with all speed – at this particular time, maybe less speed would be more appropriate, and better for the new President.
A further point is the nature of the eight Justices. Chief Justice Roberts is considered to be very Conservative in his legal outlook and judgements – similar to his British counterpart Lord David Neuberger. Ruth Bader Ginsberg, one of the longest serving Justices, is often considered to be the most liberal – similar to the British Deputy President, Lady Brenda Hale. Aside from Justice Roberts and the late Justice Scalia, Justice Clarence Thomas is considered conservative in his legal opinions – when he gives them. Justices Elana Kagan and Sonia Sotomayor are very liberal, by contrast – in parallel to Lord Johnathan Mance and Lord Brian Kerr (the Irish Judge in the Court). Justice Stephen G Meyer is considered by many to be a moderate, with Justice Anthony M Kennedy usually providing the crucial swing vote.
Consequently, the US Supreme Court is currently fairly divided between conservative and liberal legal viewpoints, and has that crucial swung vote. When hearing cases, such a balanced Court is actually ideal, as the opposing legal viewpoints of the Justices act to balance out each other. Any replacement to the Court has to be considered with that in mind: most nominees might actually swing the balance of the Court one way or the other.
President Obama is well known for his liberal form of Democrat policies. As evidence, both of his previous nominees to the Supreme Court have been liberal. Both supporters and critics are concerned that he might again appoint a liberal Justice – and upset the balance of the Court. Another reason, it is claimed, for him not to appoint a new Justice, but to let his successor choose a nominee to reflect his (or indeed her) own political style and policies.
Unfortunately, Mr Obama did not see fit to go along with that eminently sensible line. After a suitable time, he announced his nominee for the vacant seat: Chief Judge of the Court of Appeals Merrick Garland. Judge Garland is a veteran Judge, who has been passed over for the Supreme Court previously. He is a moderate, who enjoys cross party support. Of Jewish background, Judge Garland started as a prosecutor.
Given the nature of Mr Obama’s (surprise) nominee, some Republicans and those against any nomination are starting to come round to another Obama Associate Justice. Many, though, are still saying that this is a choice he should not have made. Further, many are threatening to stall the nomination process, or to reject his nominee in favour of waiting for the new President. Judge Garland has to be approved by Senate confirmation hearings, as amongst other parts of a lengthy process. The Senate is currently controlled by Republicans, whose leader, Mitch McConnell, has previously announced his determination to block or delay any nominee of Mr Obama’s.
Time will tell as to how the nomination process will progress. President Obama had a very rough ride in Congress over Medicare – and will have a rough ride over Judge Garland’s nomination as he leaves office. This could be his last legacy to America, and the American legal system – and it is a poisoned chalice.
In the UK, the nomination process is much simpler. A Committee us convened – and a name given to the Lord Chancellor for their approval. If approved, the nominee will be formally approved by the Queen.
In America, the process is more complicated, involving Senate confirmation hearings – and a great deal of politics. This time, there will be even more politics involved than usual – and even some controversy and heated disagreement, regardless of who takes up that vacant seat in the Supreme Court.
Doubtless Justice Tony Scalia would absolutely approve of such controversy.
“I love to argue. I’ve always loved to argue. And I love to point out the weaknesses of the opposing arguments. It may well be that I’m something of a shin kicker. It may well be that I’m something of a contrarian.”
Associate Justice Antonin Scalia (1936 – 2016)