Saturday we received sad and unexpected news: Justice Antonin Scalia died in his sleep.
He leaves a clear legacy. He was nominated to the Court by President Reagan prompted by the retirement of Chief Justice Warren Burger (1907-1995). President Reagan nominated Justice William Rehnquist to fill the Chief Justice’s post. He then nominated Antonin Scalia to replace Rehnquist; Scalia was confirmed unanimously by the Senate on September 17, 1986.
In the nearly 30 years since his appointment virtually all of us learned a few things: his views consistently skewed conservative and his intellect was second to none. We view each other across a long political divide (ie, I’m as liberal as he is conservative) but we actually agreed on how we interpret the Fourth Amendment to the U.S. Constitution. Among them is the case of Maryland v. King. This case, from 2012, questions whether law enforcement has the right to collect DNA through a cheek swab from someone who has been arrested (but not convicted). He and I believe this constitutes an unfair search and seizure and violates the fourth amendment.
That said, we have different philosophies on the Constitution. He considered himself an “originalist.” That means he believes that in interpreting the Constitution we should look only toward the intent of those who wrote the document.
I respect that, but I hold more to the philosophy of Chief Justice Earl Warren (1891-1974) who felt that the Constitution was a “living, breathing document.” Earl and I hold that our basic understandings of truth, morality, and how treat each other, develop over time. Just as our understanding develops, so should our interpretation of the Constitution.
My best example lies in Justice Warren’s flagship decision: Brown v. Board of Education. In 1954 the Court held that schools could no longer segregate students by race. It overturned the 1896 decision Plessy v. Ferguson that allowed “separate but equal” segregation.
Originalist arguments must hold that the Court has no right to demand integration because the authors of the Constitution included slave owners and likely none of them would have held that the races are equal. None of them would have supported a decision that virtually all of us find necessary.
I argue for the “living breathing” interpretation because I value progress. I pray that whoever claims Justice Scalia’s seat also looks to progress.
That said, I was saddened but not surprised by the immediate response of the Senate Republicans. Seemingly before the mortuary arrived to pick up Justice Scalia, Senate Majority Leader Mitch McConnell announced that President Obama “had better not” nominate Justice Scalia’s successor because the “American people” should have a say in his successor.
He is delusional on several fronts. He claims that since President Obama’s Presidency is in its last year he is a “lame duck” and shouldn’t nominate anyone. This ignores the fact that President Reagan nominated Justice Anthony Kennedy who was confirmed in the last year of his administration. Furthermore, our Constitution claims nowhere that there are conditions on the President’s ability to nominate a justice. There is no “lame duck” exception.
Finally, and this runs through both terms in the Obama Presidency, the Republican leadership refuses to play by the rules. According to the Constitution the Senate is responsible for providing “advice and consent” of Court nominees. Mitch McConnell, et al, have announced that they will not fulfill their responsibilities.
Simply put, they are in contempt of the Constitution.