As most of you know by now, Justice Antonin Scalia passed away over the weekend, creating a political firestorm, and causing pundits to say a lot of nice things about Scalia, which is appropriate when someone passes away. So, one reads, for example, how Scalia was warm in person and had a warm personal relationship with his ideological opposite, Ruth Bader Ginsburg, and how Scalia could be very funny (which is true) and how he was an excellent writer (which is true) and how much he changed the course of the court (which is also true).
I have, in the past, said less than flattering things about Scalia because I thought that he was a hysterical hypocrite, and I’m not changing my opinion on that just because he’s dead. Scalia was, in my opinion, mostly results-oriented, inconsistent, politically motivated, and did more harm to Constitutional interpretation than just about any justice in living memory. While I’m sorry for his family and the people who loved him, I’m not sorry that he’s gone.
Sorry for not being sorry.
West Virginia v. EPA
One of the little ironies of Scalia passing away this weekend was that I was about to pen a blog post about the Supreme Court, and how important the role of the next President is going to be in appointing justices to the Supreme Court, because of an order that the Supreme Court issued last week with respect to the Clean Air Act and rules that the Environmental Protection Agency had issued relative to “Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units.” The case, West Virginia v. the EPA, involves the challenge of West Virginia and 29 other coal-producing states to the EPA’s rules – which are part of the Obama administration’s effort to comply with commitments made at the 2015 United Nations Climate Change Conference in Paris – because they don’t want to lose power plants or jobs as part of the effort to curb climate change. In any case, the Supreme Court did something that was very unusual: it issued an order blocking the implementation of the rules, while they are still being heard in a federal district court.
The federal district court could have blocked the implementation of these rules, but they refused to do so. Why did the Supreme Court do this? Although they did not say, it appears the reason was to jeopardize Obama’s climate change agenda and ability to meet commitments under the Paris accords. All four liberal justices dissented on the order.
Length of Supreme Court Terms
One of the problems with the current construction of the Supreme Court is that there are no term limits on how long a Justice can serve. As a consequence, until Scalia’s passing, there were four justices who were either 80 or almost 80 (see below). Five justices have already served more than 20 years, and Scalia had served almost 30 when he died.
|Justice||Date of Birth||Appointed by||Sworn in|
Age: 79 yr 11 mo
Served: 29 yr 4 mo
Age: 79 yr 6 mo
Served: 27 yr 11 mo
Age: 67 yr 7 mo
|George H. W. Bush||10/23/1991
Served: 24 yr 3 mo
|Ruth Bader Ginsburg||3/15/1933
Age: 82 yr 10 mo
Served: 22 yr 5 mo
Age: 77 yr 5 mo
Served: 21 yr 6 mo
|John G. Roberts||1/27/1955
Age: 61 yr 0 mo
|George W. Bush||9/29/2005
Served: 10 yr 4 mo
|Samuel A. Alito, Jr.||4/1/1950
Age: 65 yr 10 mo
|George W. Bush||1/31/2006
Served: 10 yr 0 mo
Age: 61 yr 7 mo
Served: 6 yr 6 mo
Age: 55 yr 9 mo
Served: 5 yr 6 mo
When the Constitution was drafted the average life expectancy for a man – because women were not appointed as Judges – was about 36 years. Now it’s about 76 years (82 for women). I’m not ordinarily a big advocate of term limits, but in the case of Supreme Court Justices, it really does make sense. As it is now, Presidents are tempted to appoint Justices as young as possible so that they can exert that President’s influence for as long as possible, often long after that President has passed away.
I think 20 year term limits on Supreme Court appointments would be a reasonable period of time.
Advise and Consent
As I mentioned in my post yesterday, the Senate’s role in Supreme Court nominations is to “advise and consent,” not to “block and obstruct.” But it didn’t appear that any of the six Republican Presidential Candidates appearing on the 9th Republican debate actually knew that. Just to reiterate:
Section 2 of Article 2 of the United States Constitution, which governs the office of the President, says this:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.
It should be noted that the article provides that 2/3rds approval of the Senate is needed for treaties, but not for Supreme Court appointments, the Senate’s tradition of filibustering notwithstanding. A simple majority is supposed to be enough for the Senate to approve of a Constitutional nomination.
Although there had been controversial nominations before, the real politicization of the nominating process began with the nomination of Judge Robert Bork by Ronald Reagan in July of 1987. Bork was an outspoken social conservative with a long record, and he was known to be hostile to voting rights, affirmative action, and especially abortion. Liberals feared that he would be the deciding vote in overturning Roe v. Wade, at that point only 14 years on the books. Bork was voted down 9-5 by the Judiciary Committee, and then again 58-42 by the full Senate.
Since the Bork nomination, the whole process has become more and more political. In addition, nominees have become more and more taciturn and disingenuous about their beliefs, so that they could avoid the same fate that befell Bork.
Conservatives will want to point the finger of blame on liberals and the Bork nomination – and to be fair, liberals do deserve some of the blame for politicizing the process, although Reagan also named an especially provocative judge – but the Senate is supposed to evaluate the qualifications of a nominee, not their political positions. And Presidents should nominate Supreme Court candidates without imposing litmus tests, such as that they are or are not pro-choice. Ultimately, the choice of Judge is the President’s, and the role of the Senate is to advise and consent, not to block and obstruct. That’s how it is for good, and how it is for bad.
After the liberal Warren Court and the moderate Burger Court, conservatives have now had an unimpeded 30 year run with a conservative Supreme Court. I’m sure they don’t want that to change, but Obama is the President because we, the people, elected him. He has the right to nominate a judge of his own choosing. And that may change the orientation of the court, but that’s what happens when you lose Presidential elections.
Tough luck, conservatives.
Republicans being hypocritical? Shocking, just shocking!
Oh I know, many of you believe that all politicians are hypocritical, and to some extent that is correct. But not all politicians are equally hypocritical. Today’s Republicans are a special blend of hypocritical, capable of contradicting themselves completely on who happens to be in power with a straight face, as if none of us had ever heard of video or as if their previous comments were not on the record. That, my friends, should not be rewarded.
 However, it should be noted that the Senate actually held these votes, thereby putting themselves on the record. In recent years they’ve used filibustering and other procedural votes to avoid having to go on the record at all.