President Ronald Reagan pointed out in 1987 that “every day that passes with the Supreme Court below full strength impairs the people’s business in that crucially important body.” This, of course, is why after the death of Justice Antonin Scalia in February President Barack Obama dutifully nominated Judge Merrick Garland to replace him. Even if Garland recused himself from voting on cases this summer, he would be ready for the new court season in October.
Mr. Obama clearly selected Judge Merrick because he was non-controversial and should have been easily confirmed after only a few weeks of interviews and hearings. Obviously, radicals on the left and reactionaries on the right would be unhappy, but all others would have no valid complaint against him. However, for purely political and ideological reasons, the Republican Senate majority has refused to consider the nomination. Apparently, no president who can no longer be re-elected should be allowed to do his job.
This summer, we must be prepared for potential 4-4 decisions – or non-decisions – and expect more of the same for the next year or several years. Hopefully, the court will go out of its way to avoid that type of ruling, but that may mean that serious issues will have to be avoided by the court, and we will have to accept that what is legal or illegal may depend on where you live, wrecking havoc on national unity.
The Fox-Republican-TEA Party’s nearly eight-year strategy of “obstruct and sabotage” against President Obama has finally led to probable gridlock on the Supreme Court. An explanation for this may come from understanding the persona of Justice Scalia and his importance to the advancement of the Republican Party. Or, to put it another way, why will the Senate majority accept only a Scalia clone as his replacement?
Author Robert Louis Stevenson can help us understand Antonin Scalia. The justice was certainly reminiscent of “The Strange Case of Dr. Jekyll and Mr. Hyde.” Without his court robe, he was a “buddy” to Ruth Bader Ginsberg and a hunting companion to Sonia Sotomayor, both moderate-left justices. In 1987, I witnessed an admirable Scalia at a forum at Tulane University in New Orleans on the topic of “Our Individual Rights: Protected or Threatened.” Reagan had appointed Scalia to the U.S. Supreme Court the year before, but on that night, he wasn’t wearing his robe.
Fred Friendly was the moderator and is often remembered for his collaboration with the great journalist Edward R. Murrow. My memory of the details of that evening fails, but what was unforgettable was that nothing Justice Scalia said was what I, nor probably anyone else, expected him to say. Mr. Friendly confessed at the end of the program that he was pleasantly surprised at the positions Scalia had taken and said that he had shown open-mindedness and empathy to individual rights that he had not expected based on Scalia’s rulings as a judge. (By the way, Justice Ginsberg was also on that panel discussion, but she was on the District of Columbia Court of Appeals at that time.)
Two years later, Mr. Friendly produced his 10-part PBS series “Ethics in America,” and once again he included Scalia among the participants. Also again, people like Tom Brokaw, Peter Jennings, and Colin Powell took positions that you would expect them to take based on what you knew of them before, but Scalia’s responses were diametrically opposed to what you would expect from his votes on the Supreme Court. He was the perfect Dr. Jekyll.
(In fairness to Scalia, there was one other frequent participant in those forums who also displayed a Dr. Jekyll side that contrasted his Mr. Hyde official self: Newt Gingrich, who had gained the moniker “Gingrich Khan” as the House Republican minority leader and then later as Speaker of the House. Absent his minority leader role or the speaker’s gavel, he was a totally different person.)
Once Scalia put on that robe, he became Mr. Hyde, a man who would politicize and subvert the court to do the bidding of the plutocracy and Republican Party. This is why John McCain, Mitt Romney, and Donald Trump said that they would appoint people like Scalia and his marionette Clarence Thomas to the Supreme Court if they were elected president. Scalia was not just one of the reactionaries on the court: he was their leader.
The case of Gore v. Bush (2000) is a perfect example. Scalia was among the five Republican appointees who stopped the vote count in Florida and appointed George W. Bush as president. Unlike the others, Scalia later boasted, “I was glad to be able to do it.”
The Citizens United v. FEC (2010) 5-4 ruling was intended to ensure the future election of Republican presidents. Although it didn’t work in 2012, it caused/causes a flood of money into state and local elections as well and has replaced our democratic-republic with a plutocracy. The bizarre ruling that money is speech has corrupted our election system. The wording of the ruling was designed to obscure its intent. The ruling stated that Congress still had the power to require that the names of “dark money” donors be made public, knowing full-well that a Republican majority in either house would never let that happen – nor would a Republican minority in the Senate because of the filibuster.
In Shelby County v. Holder (2013), another 5-4 ruling struck down a key provision of the Voting Rights Act of 1965 so that states would be able to pass laws to restrict voting rights. Because of demographic changes in the American electorate, the larger the voter turnout, the more likely Democrats will get elected; the smaller the turnout the more likely Republicans will get elected. Again, the ruling tried to disguise its purpose by allowing the Congress to redraw the map of states, cities, and counties that were likely to discriminate against voters, again knowing that Republican congressmen would never allow that to happen.
The Senate Republicans are only going to accept another Jekyll and Hyde: someone like Scalia who is known as a good and decent man who knows right from wrong but who will remember that his appointment is based on his willingness to cater to the needs of the plutocracy and his party. If they can’t get someone to complement Thomas, Samuel Alito, and usually John Roberts, it’s likely that we won’t see any new faces on the Supreme Court for some time to come.
By David Offutt
A version of this essay was published June 11, 2016, in the El Dorado News-Times as a guest column.