With the passing of Supreme Court Justice Antonin Scalia this past weekend, the Country is set once again high political drama. I would suggest that you expect Republican demands that no action be taken, and Democratic cries at blocking a nomination … but our elected officials did not spare a moment. Within hours of the announcement of his passing, the parties have already done both of those things. Whatever your political leaning, it should embarrass you a little that both sides have reacted so stereotypically, so quickly.
I will leave my personal politics out of the discussion. Justice Scalia was hailed as a great conservative. I think he saw himself more as an originalist. He abhorred the decision in Roe v Wade because, from his originalist view, the decision read rights into the Constitution that simply were not there. Likewise, he upheld the right of an individual to burn an American flag as protected free speech despite the fact that her personally would have found the practice shameful. He truly believed that in each of his decisions, he was attempting to adhere as closely as possible to the original intent of the Constitution. Whether we agree with his version of that Constitution, or the results of those decisions is an entirely different matter. He was principled, and did a very good job of remaining consistent to those principals even when they took him places he would prefer not to go.
In the coming days and weeks, you are certain to hear that an appointment in an election year is unprecedented. That we must wait for the next president so that the people can have a say. You should hear that failure to act in a timely manner is a dereliction of Congress’ duty. That the failure to give an Obama nominee a fair hearing is obstructionist politics as usual.
In all of this I would encourage you to consider looking at facts, rather than making decisions based upon rhetoric. Both sides are going to skew the facts. A quick read of this article, 7 Things To Know About Presidential Appointments To The Supreme Court can be read to condemn both sides. Shockingly, the Republicans are not completely wrong, and neither are the Democrats. They are simply massaging reality a bit.
With a Court that has been divided sharply 5-4 on a number of high profile cases in recent years, the very real threat that the Court could find itself tied 4-4 with Justice Scalia’s passing is upon us. Just this year, you can expect rulings on Voting Rights, Affirmative Action, Labor Unions, Abortion, Contraception, and Immigration. If the Court cannot find a majority, the law remains in question.
Our best hope is that between the President and the Congress they can come up with an appointment that both sides can agree on. Increasingly difficult in the politicized world of the Court, but one can hope.