I grew up in the Chicago area, where as schoolchildren we had “recess,” that is, a time to take a break during the school day. We all went outside to play, and in the winter this meant in the snow. I am not a fan of snow.
Now I live in Paris, where it snowed today for the first time this winter. Not enough to stick, but that’s fine with me. I’m sure there’s more than enough in the States, including in the Washington area, where Justice Antonin Scalia, who died February 13, is likely to be buried. While many are figuratively dancing on his grave, and might want to do so literally, I will not join them. No matter how I disagreed with his jurisprudence, I find it unseemly to celebrate the death of another human being. And there’s a selfish motive, too: I hope nobody will dance on my grave.
Justice Scalia was known for his sharp mind and razor wit. As one of the four reliable members of the Supreme Court’s right wing, he often got the opportunity to demonstrate them, whether in the majority or not. (For those who aren’t intimately familiar with the American judicial system, the Supreme Court, which has nine members, has the final word on interpretation of the United States Constitution as well as both criminal and civil cases, roles that are often divided in other countries. As such, it is an extremely powerful body.)
The replacement for Justice Scalia is a hot issue right now. Members of the Supreme Court have lifetime tenure after nomination by the President and approval by the Senate. If President Obama nominates a moderate or a liberal, the hard-core right wing of the Court will be reduced to three members (Roberts, Thomas and Alito). The liberal wing currently has four members (Ginsburg, Sotomayor, Breyer and Kagan), with one moderate member (Kennedy) who often provides the deciding fifth vote. As such, Scalia’s replacement could affect the direction of the Court for a generation.
Scalia was known as a “strict constructionist” — that is, someone who believes the “original intent” of the writers of the Constitution remains more important that interpreting it as a living document that suits the times. He would lambaste those who disagreed with him, but he, too, would occasionally stray.
One example was NLRB v. Noel Canning, a case challenging President Obama’s interpretation of the “recess appointment” clause of the Constitution, which allows the President to temporarily fill vacancies when the Senate is in recess. While the decision was 9-0 against the President, the Court was actually divided 5-4 on how to apply the Constitution, The majority held that the Senate is in recess when it says it is; Scalia referred to the clause as an “anachronism” and would have barred any such appointments.
Why is this important? Because the Senate was in recess when Scalia died — and will remain in recess until February 22. That gives President Obama until Sunday to fill the vacancy on the Court without approval from the Senate. The justice would serve until the end of the next session — that is, January 2017. In the meantime, the President could send a name to the Senate for approval, either the same person or someone else.
The irony that Scalia’s death could lead to the sort of result that he railed against would surely not have been lost on the man. It’s trivial for the Senate not to go into recess — in fact, it has become routine for it to schedule “pro forma” sessions during breaks for exactly that reason. And it required a majority vote from both Republican-controlled chambers of Congress for the Senate to go into recess. But so it is.
The hue and cry among the media-political elite is that President Obama and/or the Senate could politicize the process. But Supreme Court appointments have often been political, and the Senate has on occasion rejected a nomination. And the use of the recess appointment is also fairly rare — though President Eisenhower made three, including the appointment of William Brennan to the Court in 1956, shortly before Election Day. By appointing a Catholic Democrat, Ike hoped to temper support for his opponent, Adlai Stevenson. (He also named Earl Warren in 1953 and Potter Stewart in 1958, the most recent recess appointment to the Court.)
Another notable case from recent years was that of Robert Bork, an extremist from the right nominated by President Reagan in 1987. Democrats declared even beforehand that a Bork nomination would be dead on arrival, much as the Republicans this year have vowed to torpedo any nomination whatsoever by Obama. (Presumably they’d change their minds if he named someone from the far right.) Bork was rejected by the Senate; Reagan successfully nominated Anthony Kennedy in his stead, and the justice, though initially a reliable member of the right wing, eventually moved to the center, where he remains.
The lessons to be learned? First, whatever President Obama decides will have political overtones. As in Eisenhower’s case, it’s an election year, though there is no re-election campaign in progress. If Obama makes a recess appointment, he will be accused of politicking. Similarly, if he doesn’t make one, that’s a conscious political decision as well. (ABC News quotes the deputy White House spokesman as saying “we don’t expect the President to rush this through this week,” which ABC interprets as a statement that Obama won’t make a recess appointment. But consider three alternatives: one, expectations often differ from reality; two, the deputy spokesman could be overruled; and three, the discussion appears to be about a permanent nominee, which needs to be sent to the Senate, not a recess appointment, which does not.)
Will he submit a liberal or a moderate to the Senate? Does it matter much? What we have learned is that someone who is supposedly a rock-ribbed Republican can shift to the left (Chief Justice Warren being perhaps the most notable example). And the reverse is true as well. The Court has a way of rebalancing itself to adapt to the times.
What strategy should he adopt? One possibility would be to name an extreme liberal as a recess appointment, then submit a moderate to the Senate for the lifetime post. I, for one, can’t imagine who would agree to be the sacrificial liberal lamb. Perhaps he could name Michelle Obama.
That, no doubt, would leave Justice Scalia turning in his grave, buried under the snow during recess.