Among the growing number of things I cannot get my head around, the late Justice Scalia’s theory of ‘originalism’ and ‘textualism’ has taken a prominent place since his death last Saturday. As Bruce Allen Murphy explained in the New York Times, Scalia believed that the Supreme Court should decide cases based on the ‘public meaning’ of the words in the Constitution and its amendments, as understood by the American people at the time of their ratification. I understand his principled aversion of ‘activist judges’ and ‘legislating from the bench,’ but it would appear that Scalia did not run away from his own activism when an opportunity presented itself. The most important majority decision he wrote, DC versus Heller in 2008, confirmed the right of individuals to own guns for personal use. It was based on a ‘symptomatic’ reading of the word ‘the’ in the second amendment, which would trace the right back to earlier common law. All that wisdom doesn’t take away, however, that the second amendment was written in 1791, when a gun was a one shot musket and the public meaning of the word ‘arms’ did not include assault weapons.
Scalia was part of the court’s majority in three cases that had far reaching political consequences: The decision to uphold the Florida primary result in 2000 that made George W. Bush US President, in spite of significant disenfranchisement of minority voters and obsolete technology, the Citizens United decision that allowed unlimited amounts of corporate money to flow into US politics, and the decision to void parts of the Voting Rights Act. Given the political impact of Supreme Court decisions it is not surprising that his succession was politicized before his body was cold. Senate Republicans vowed not to confirm anybody Barack Obama might nominate, but for now Obama has the initiative. If he behaves like the constitutional scholar he is, which is to be expected, he’ll simply nominate the person he considers most qualified for the position, but this year the nomination process creates unexpected opportunities. Since it runs parallel to the election circus there will be inevitable interactions between the two processes, which are potentially more advantageous for the Democrats than for the Republicans.
Obama’s most qualified nominee may not be acceptable to the Republicans, but with every rejection they have to take stock and wonder what the chances are that the next president will be a Democrat and nominate someone who’s even less acceptable. And since not only the presidency is in play, but also the majority in the Senate, what happens down the ticket is almost as important as what happens at the top. If Trump becomes the GOP nominee, all bets are off.
There is a strong rumor that Obama will nominate Loretta Lynch, his Attorney General. Since she’s a black woman, both Hillary Clinton and Bernie Sanders will immediately embrace that decision, in the context of their competition for the black and the female vote. It would make Loretta Lynch’s endorsement almost as important as Obama’s, although neither is forthcoming.
An additional problem for the Republicans is that they may not have an alternative. If Trump becomes their nominee and by happenstance wins the general election, he might very well nominate his sister Maryanne, a liberal, pro-choice Appeals Court Judge in the Third Circuit.