Supreme Court Justice Antonin Scalia, the Supreme Court’s most adamant, eloquent, controversial and influential conservative jurist and one of the most important theorists in the institution’s history, died today, unexpectedly, on a ranch near San Antonio while on a hunting holiday. He was 79.
1. I had a beer with the Justice at a bar function a long, long time ago, after entertaining the assembled legal heavyweights. He was friendly, funny, and gregarious, and when I asked him if he would be on the Supreme Court for the rest of his life, he said, “God, I hope not!”
2. While everyone will be saying that this ups the ante in the Presidential race, that’s impossible. The importance of the election couldn’t be greater. The vacancy Scalia’s death creates, unfortunately,will increase the level of demagoguery from both parties, with the appointment of Scalia’s replacement being elevated to the equivalent of a life and death matter obliterating all other considerations. Anyone who argues that will be exposing their true status as a hack, appealing to hysterics, ignoring te ethical value of proportion. The composition of the Court is important, but it is not that important.
3. What is most important to the Court, and has been lost since Robert Bork became the first qualified judge to be blocked by pure partisan considerations despite undeniably outstanding qualifications, is to have smart, able, proven justices. Scalia was such a jurist.
4 .One of the traits of a qualified jurist is a refusal to pre-judge any issue or case before hearing arguments and knowing all the facts. Several of the current justices, including Scalia, have been sucked into the bitter partisan battles of this era and have made comments that called this trait into question.
5. Scalia was the longest tenured justice, and probably stayed too long, as have several of his surviving colleagues. It is a demanding job, and though seniors deny it, being a judge is like being a baseball player: even the greatest ones who are better than most younger players long after their prime have past are still not as good as they used to be. Age diminishes us all: in Scalia we could see it in increasingly nasty and bitter dissents, and increasingly imprudent commentary off the bench. I don’t believe there should be a mandatory retirement date, but I do think judges at all levels should accept that part of their duty to justice is to leave the bench before they start to slip, not after. Nino told ne years ago that he wanted to leave the Court before he had to. He was right then.
6. No SCOTUS Justice within memory was more viciously attacked by ideological foes—well, other than Clarence Thomas. Too many of those critics never read a single one of Scalia’s opinions, and if they did, they wouldn’t understand it.
7. The sudden revelation of Scalia’s mortality should focus renewed attention on the wisdom of entrusting vital government power with the rapidly aging and aged. Perhaps we will learn that Scalia had some secret and fatal malady, but absent that, nobody thought his demise was imminent. The fact is that once one is over 75, all bets are off, for anybody. The attenuated ages of so many leading candidates for the 2016 election—Trump, Clinton and Sanders—really deserves attention, and it is irresponsible to ignore it.
8. Let’s see which progressive pundit or website shows its ugly side in reacting to Antonin Scalia’s death. He gave half a century to public service and the law, and few have served longer or with more distinction. Anyone who can’t rise above partisan differences to give him the final respect he earned will be revealed as petty and small.
9. President Obama would be prudent and wise to announce that the vacancy will be filled by the next President. If he insists on the theater of appointing his own, making that poor judge, whoever it is, the center of a pre-election circus when confirmation is impossible, then it will be yet another example of this President being divisive for political expediency.
UPDATE: Senate Majority Leader Mitch McConnell announced that the Senate would not hold a vote on any President Obama-appointed replacement this year. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” McConnell said in a statement.
UPDATE 2: Naturally, the President announced that he would send a DOA nomination to the Senate anyway.