Educators as I often compare the United States Constitution to the Torah. Both documents root vibrant cultures that have endured for generations. Both are considered as the primary source whence legal systems have been formed, as well as standards by which communities were created and thrived on the basis of a common background, system of conduct and purpose. The writing of the Torah is shrouded in mystery. By contrast the writing of the Constitution is documented in minutes of the Constitutional Convention, in collections of essays of which the Federalist Papers are a prime example, in newspapers and journals of the era, and in correspondence of delegates. It is relatively simple to identify the goals, reasoning and compromises established by the writers and later ratified by the state legislatures.
When Associate Justice Antonin Scalia died last Shabbat a critical moment was formed in regard to the place of the Constitution in American jurisprudence; and by extension the life of our country. As has been noted, Scalia was an originalist and staunch conservative. He believed strongly that to understand the Constitution one must understand the intent of its authors. He was no Luddite, but held that despite changes in social standards and economic and technological advances, one must understand the guiding principles of the Constitution to render correct decisions for cases that came before the Supreme Court. Liberal and conservative legal scholars praised Scalia for his integrity, for the clarity of decisions and opinions he wrote, and for his ability to separate his legal judgments from personal philosophical views on which he may have affiliated or on which he lectured. His was the swing vote, and his passing brings an end to the five four majority of Conservative judges in the High Court. Whoever fills his seat will perforce take on Scalia’s vacancy as a swing vote.
In last Saturday night’s debate each and every contender for the Republican nomination argued that the next president should appoint Scalia’s replacement. This action was consistent with practice of many years, in which lame duck presidents resist the urge to nominate a new justice when an opening becomes available on the court. It is also consistent with the expressed statements of Senator Chuck Schumer (D.NY) who pledged that the Senate would not approve any appointee should one have occurred during the final year of President George W. Bush’ presidential term. There is no rush to fill the seat. Even if President Obama correctly argues that he is charged by the Constitution to nominate a new justice, and even if the Democrat candidates both want a rapid approval, it may not happen. Considering past actions of Democrat Senates, it is not unusual for that house to take months or years to render advice and consent. It took so long with Robert Bork’s nomination that his name became a verb. Many justices now serving on appellate benches were approved after a very protracted time.
It is intriguing that the party that usually argues for traditional adherence to the written text of the Constitution is now questioned by the liberal party that is not normally so literal in its reading of our founding document.
Where does this leave the country? Were I a consultant to any of the Republicans, I would argue that they demand of the Senate to be scrupulous in reaching a decision. It need not accept a justice who does not meet the standards that the majority finds fitting for the role to be filled. If this can be done before President Obama leaves office, no problem. If not, also no problem. Blocking nominations or asking that they are not be made is not a reality worthy of any candidate. Delaying this decision for political gain is wrong. The American people have never held a referendum on whom should be appointed to the court. With all the controversy in which the candidates for office are already mired, it is hardly time to add yet another problem. Let’s instead press the eventual presidential nominee and both parties to insist that the next justice nominated be worthy of the role he or she will be asked to fill.
After writing the bulk of this essay, President Obama announced that he is too busy to attend Justice Scalia’s funeral. Whether the two men were simpatico or not; this action by a sitting president is a slap in the face of Scalia’s family, and a denigration of aman who gave his life to the advance of American justice. President Obama’s actions need to be noted and contested.