Fill Supreme Court void left by brilliant Scalia: Our view
Obama's nominee deserves timely Senate consideration.
In a city full of enormous egos whose intellect and talent often fail to match their inflated self opinions, Justice Antonin Scalia was the real deal. He was brilliant, remarkably articulate and an aggressive advocate for his conservative constitutional views — yet capable of personal warmth and humor that endeared him to fellow justices who just as passionately disagreed with him.
One of his signature lines should be required reading for anyone who comes to work in official Washington: “If you can’t disagree about the law without taking it personally, find another day job.”
We frequently disagreed with him, especially on matters of social justice, where his crabbed view of the Constitution consistently steered him to the more traditional side of issues such as males-only admissions policies at public schools or the constitutionality of gay marriage.
His angry dissent in a 2003 decision striking down Texas sodomy laws, for example, seemed to have less to do with the law than his private views on gay sex. The court, Scalia said, had “largely signed on to the so-called homosexual agenda … directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Scalia insisted his rigorous approach to the law kept his personal views from clouding his legal judgment. But his textualism and originalism — the belief that the Constitution should not be read as a living document, but instead interpreted strictly in the context of the times in which it was written — usually took him in a direction that matched his personal views. It also often isolated him at the right end of a conservative-leaning court, so his legacy beyond his landmark gun-rights opinion is mainly found in his furious dissents.
But agree with him or not, those dissents were what many court followers wanted to read first, for their compelling logic, verbal agility or just sheer entertainment value. Last year, for example, Scalia mocked his colleagues in the majority on an Obamacare case for their “interpretive jiggery-pokery” and called another one of their arguments “pure applesauce.”
Let�s let the people decide: Opposing view
Though Scalia is barely gone, partisan war has already broken out over whether he should be replaced this year. Within hours of the 79-year-old justice's death Saturday, President Obama said he'd nominate a successor and demand a timely vote, and Senate Majority Leader Mitch McConnell, R-Ky., just as quickly signaled that the GOP-majority Senate would run out the clock in hopes a new Republican president can nominate a more conservative justice next year.
This is a high-stakes fight, of course, about shifting the ideological balance on the court, and Republicans are understandably loath to let Obama replace a very conservative justice with a more liberal one who might serve for decades.
But elections have consequences, and Obama was re-elected in 2012 for four years, not three. Slow-walking a confirmation until 2017 is crass politics that puts partisan self-interest before the effective functioning of one of the nation’s most important institutions.
Until Scalia's vacancy is filled, the court’s typical 5-4 conservative/liberal split on many divisive cases will become a series of 4-4 stalemates that will hobble the high court and allow lower court decisions to stand.
The decision about approving the next justice shouldn’t turn on which side wins in November while the high court limps along for more than a year without a tie-breaking justice. The Senate should hold timely confirmation hearings on Obama's nominee and vote to confirm that person if he or she is highly qualified and falls within the broad judicial mainstream.
Partisans on both sides ought to look back to a time when the confirmation process was faster and less nakedly partisan — such as when Antonin Scalia was confirmed 98-0 less than three months after he was formally nominated by President Reagan.
USA TODAY's editorial opinions are decided by its Editorial Board, separate from the news staff. Most editorials are coupled with an opposing view — a unique USA TODAY feature.
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It’s about time
Presidents and their Supreme Court nominees, days from submission to Senate to final vote:
Obama Kagan 87
Obama Sotomayor 66
G.W. Bush Alito 82
G.W. Bush Roberts 23
Clinton Breyer 73
Clinton Ginsburg 42
G.H.W. Bush Thomas 99
G.H.W. Bush Souter 69
Reagan Kennedy 65
Reagan Bork 108
Reagan Rehnquist 89
Reagan Scalia 85
Reagan O’Connor 33