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Wednesday, February 17, 2016


I had though of writing something about Justice Scalia. I was not a huge fan of his politics; and I thought the manner in which he expressed himself both in his opinions and public appearances often went out of his way to diminish his opponents. If you were a criminal defendant, a person of color, a woman, a member of a labor union, or gay (the list is non-exhaustive), then at some point Justice Scalia did something that was materially harmful to your interests, and he usually disparaged you (or your legal proxy) for arguing for those interests in the forum of constitutional law. The fact that some people found him personally charming seems immaterial to those of us hurt by his decisions and outraged or disappointed or just plain unamused by his rhetoric. Donald Trump is also a personally charming man whose rhetoric and actions have malicious consequences, and I'm no longer a Tom Brady supporter given his "nice guy" defense of Trump. It's nice that the institution of the Court got to operate in a civil manner because he was not personally offensive to the other justices (or to his clerks or his former law school colleagues, it seems), but the great Justice could be notoriously churlish to those of us who were not a member of those clubs.

But put that to one side. I'm also of the opinion that if a liberal justice had died while George W. Bush was in the last year of his presidency, liberals would have strategized to hold up his ability to nominate a successor. It is the President's duty to nominate a successor; it is the Senate's job to do with that what it will. The Constitution says no more than "advise and consent," and the idea that the Senate would be acting against the text of the Constitution in withholding an appointment seems to me to read more into the Constitution than is there. The point of a self-checking tripartite government is precisely to engage in a power-struggle to see who can make their point of view prevail. Odds are, it will be the Senate.

Of course, that process should be—in an ideal world—one that is guided by moral principles. I am not a person who believes in the realpolitik or "dirty hands" model of politics, in which there is a separate sphere of morality that operates in the political domain and that holds that the ends justify the means in promoting the interests of one's faction. That, famously, was Machiavelli's position, and Machiavelli was wrong. Nonetheless, in a pluralistic world, there is room for disagreement; and there is certainly a reasonable position that says that half a term without a justice will not ring in the end of the world. Of course, if the President nominates reasonable candidates, and the Senate fails to nominate them, then the Senate will be acting unreasonably and perhaps immorally. Unfortunately, it is within the Senate's power to act unreasonably and immorally (one might think that, on certain topics at least, that is its default position). 

There are, however, a couple of fallacious arguments out there. The first is that there is some tradition that authorizes such conduct. There is no tradition, because the situation is incredibly rare. I clerked for two judges who were Carter lame-duck appointees. So certainly the tradition does not exist for lower-court judges. And there is simply not enough of a sample size for there to be a tradition at the Supreme Court level. 

There is also no Thurmond Rule worth adhering to. The name of the rule gives it away. 

Finally, the idea that Justice Scalia would have wanted a conservative (Judge Easterbrook, some have said) as his successor is an interesting fact, but somewhat irrelevant. I'm pretty sure Thurgood Marshall's preferences weren't honored; and there is certainly no tradition of a justice nominating her successor. 

Which brings us back to politics. At some point, politics is about power. It is what makes it a specialized branch of morality. And the current Senate has all the power. It's arguments for exercising that power should be moral ones, not some set of made up rules to bamboozle us into thinking that they are just following precedent. Some said at election time that the President should have put more effort into ensuring a Democratic Senate; he is now reaping that whirlwind. As are we all. 

Posted by Eric Miller on February 17, 2016 at 12:32 AM | Permalink


Scalia helped SOME defendants while harming others. I am not a great fan of the guy but fair is fair there.

Thurmond Rule is set at six months as I recall. It doesn't kick in February. What would Democrats do? I don't know. I have a somewhat wary opinion of them given what they did in various cases. If a Republican picked the right person, not just some liberal, enough Dems might vote to allow a confirmation. But, it's a thought experiment and the present is more partisan there than let's say 1992.

Posted by: Joe | Feb 17, 2016 7:59:15 PM

I would disagree and argue that politics is always about power, not just "at some point." I think it's also worthwhile to put forward Weber's argument that politics is the wrong realm to look for morality or salvation, since the very essence of politics is the use of force and violence, which puts it always at odds with morality and salvation.

Posted by: YesterdayIKilledAMammoth | Feb 17, 2016 7:00:44 PM

^^ True. But more to the point, if you were a criminal defendant, a person of color, a woman, a member of a labor union, or gay (the list is non-exhaustive), then at some point every Justice has done something that was materially harmful to your interests. For this to not be the case, the law would have to either be (a) completely indeterminate, or (b) maximize the interests of the groups listed above at every point, or (c) the law is not thoroughly indeterminate and does not maximize the interests of the groups listed above at every point, but some Justice nevertheless chooses to maximize those interests at every point in contravention of the law. This just seems such a silly criticism. You can complain about the frequency with which Scalia did things that harmed those groups' interests, and argue that ideology and prejudice have something to do with that frequency, but to fault a Justice for, at *some* point, doing something to harm a number of groups' interests is to fault him for not being a minority interest-maximizer, regardless of what the law might have to say about maximizing those interests. I'm not even sure it's a coherent criticism even if adjudication were purely political. Is there any American politician who hasn't, at some point, materially harmed the interests of criminal defendants, gays, women, labor unions, etc.? Is it possible or desirable for a politician to never harm those interests?

Posted by: Asher Steinberg | Feb 17, 2016 6:32:52 PM

"If you were a criminal defendant . . . then at some point Justice Scalia did something that was materially harmful to your interests"? It seems to me that Justice Scalia did more to uphold the rights of criminal defendants than anyone else on the court, and would have gone even further, had he gotten more of his colleagues to go along (see, e.g., his dissents in Maryland v. King and in Hamdi, and his concurrence in Dickerson.

Posted by: gdanning | Feb 17, 2016 2:15:14 PM

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