Justice Antonin Scalia

  • February 24, 2016

    by Jim Thompson

    On MSNBC, ACS Board Chair Cliff Sloan, who served in the U.S. Department of State as Special Envoy for Guantánamo closure, discusses the process of transferring detainees to foreign countries and domestic detention facilities.

    At SCOTUSblog, President Barack Obama explains the qualities he seeks in a potential Supreme Court nominee.

    Paul Campos at Salon rebuts claims that Justice Scalia was a brilliant jurist, writing, “Over and over during Scalia’s three decades on the Supreme Court, if one of his cherished interpretive principles got in the way of his political preferences, that principle got thrown overboard in a New York minute.”

    In The New Yorker, Jeffrey Toobin remembers Justice Scalia as a stubbornly retrospective jurist “nostalgic for a world where outsiders knew their place and stayed there.”

    On Tuesday, Senate Majority Leader Mitch McConnell (R-Ky.) announced that the Republican-controlled chamber will refuse to consider any Supreme Court nominee submitted by President Obama, reports Richard Cowan at Reuters.

  • February 23, 2016
    Guest Post

    by Neil Kinkopf, Professor of Law, Georgia State University College of Law; Professor Kinkopf is the faculty adviser for the ACS Student Chapter at GSU College of Law 

    The C-span video of then-Senator Joe Biden vowing to oppose any hypothetical election year nominee in 1992 calls to mind Casablanca’s Capt. Louis Renault: “I’m shocked … shocked to find” doubletalk in the United States Senate. What would be truly earthshaking would be video evidence of a U.S. senator who did not take diametrically opposed views depending on whether the occupant of the White House was a member of the senator’s political party or the opposing party. This video (along with video of Sen. Schumer vowing obstruction in 2006 and statements from then-Sen. Obama himself) is being waved about as evidence that the Senate may legitimately refuse to perform its constitutional duty to “advise and consent” on any nomination that President Obama might make to fill the Supreme Court vacancy created by Justice Scalia’s death. These arguments should not be taken seriously.

    The individual, isolated statements of Senator Biden, or Schumer, or Obama, or McConnell for that matter, tell us nothing about the real meaning of the Senate’s constitutional advise-and-consent role. More generally, the claim that statements by individual senators should be given any weight in construing the Constitution is profoundly mistaken. Justice Scalia’s own writings on legal interpretation and the use and abuse of legislative history demonstrate quite persuasively the perils of relying on individual statements of legislators: such statements rarely reflect a considered consensus and are often made to promote a political objective, rather than to offer a truly forthright view of the merits of an issue. It is no surprise to learn that Senator Biden, in the wake of his disastrous mismanagement of the Clarence Thomas nomination hearings, was eager to supplicate his political base by making bombastic promises opposing hypothetical election year nominees. 

    This sort of argument is familiar to readers of constitutional law. Its most famous treatment came in the Steel Seizure case, though it dealt with an executive branch political actor rather than a legislator.  The case considered the validity of President Truman’s executive order seizing the nation’s steel mills to avert a labor strike and so to maintain production of munitions during the Korean War. As FDR’s Attorney General, Robert Jackson had written a legal opinion authorizing the president to seize private property under circumstances quite similar to those that prompted Truman’s order. As a Supreme Court Justice, Jackson rejected the position he had taken as Attorney General.  Referring to his legal advice and public statements in support of FDR’s seizures, he wrote “While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself.” 

  • February 17, 2016

    by Jim Thompson

    Justice Antonin Scalia’s death strips conservatives of the 5-4 advantage they had on the Supreme Court at a time when they were positioned to cement some of their longest sought legal gains in areas such as abortion, voting rights and affirmative action, says Tierney Sneed in Talking Points Memo. ACS Board members William Marshall and Adam Winkler provide commentary on the new balance of the Court and the ramifications of split decisions. 

    A split 4-4 decision in Friedrichs v. California Teachers Association would reaffirm the U.S. Court of Appeals for the Ninth Circuit’s ruling upholding the constitutionality of fair share union fees, reports Charlotte Garden at The Atlantic. Even if the Court holds the case for re-argument once a new justice is confirmed, these fees should remain legally sound through the 2016 election.

    At The New Republic, David Dayen explains how America’s grandiose, non-stop electioneering precipitated the current constitutional crisis. 

    Dean Robert Schapiro of Emory Law School writes in The Conversation that Justice Scalia’s jurisprudence will be remembered more for its quotable rhetoric than its legal impact. 

  • February 16, 2016

    by Jim Thompson

    The New York Times explains the process by which a new Supreme Court justice will be chosen.

    In USA Today, Sen. Patrick Leahy (D-Vt.) criticizes Senate Majority Leader Mitch McConnell’s (R-Ky.) preemptive vow to block any Supreme Court nominee President Obama submits to the Senate for consideration.

    President Obama’s nominee to replace Justice Scalia should be confirmed by the Republican-controlled Senate “if the nominee has no ethical problems and is either moderate, or very highly qualified, or will not have a significant impact on the balance of the court,” says former ACS Board member Geoffrey Stone in Time. He adds, “The Senate’s job in the confirmation process is to advise and consent, not to obstruct for the sake of partisan political gain. If the President nominates the sort of candidate I have posited, it is the constitutional responsibility of Senate Republicans to judge that nominee fairly and on the merits.”

    The president has a responsibility, not a right, to fill vacant seats on the Supreme Court, states John Nichols at The Nation.

    In The Denver Post, Emilie Rusch says waiting to replace Justice Antonin Scalia would be a risky legal move. In the event of a split 4-4 decision, “the lower court's decision would automatically be affirmed, but it has no precedential value for the rest of the nation,” notes Melissa Hart, faculty advisor for the ACS Student Chapter at the University of Colorado Law School. 

    In The Boston Globe, ACS Board member Nancy Gertner highlights the flawed reasoning behind originalist interpretations of the Constitution, writing, “Words don’t interpret themselves; they require interpretation, and the Constitution even more so than most texts.” 

  • February 15, 2016
    Guest Post

    by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law; Professor Kinkopf is the faculty adviser for the ACS Student Chapter at GSU College of Law

    Starting almost immediately after the reports of Justice Scalia’s death, there has been controversy over whether President Obama can make a nomination to fill the vacancy and, if so, whether the Senate should consider a nomination given that it is a presidential election year.  President Obama has announced his intention to make a nomination and Senate Majority Leader Mitch McConnell has expressed his opposition, asserting that “[t]he 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.”

    History clearly shows that President Obama is within his constitutional authority in making such a nomination.  History also supplies virtually no support for Senator McConnell’s plan to refuse to consider any Obama nomination.  I have collected the relevant precedents in four tables appended to the end of this post.

    The President’s nomination power.  The text of the Constitution grants the President the authority to nominate without qualification (except that his nomination does not blossom into an appointment without the advice and consent of the Senate followed by a commission that has been validly signed and sealed).  This would seem to indicate, though not expressly, that the President may exercise the power at any time while in office without exception.  Practice confirms this.  Presidents have made 22 nominations to fill Supreme Court vacancies during an election year.  In addition, Presidents have made 13 lame duck nominations – nominations made after an election had chosen a new President-elect but before that new President-Elect was inaugurated. 

    The Senate’s Advise and Consent Role.  “Delay, delay, delay.”  This is what presidential candidate Donald Trump urged the Senate to do during Saturday night’s debate.  Senator McConnell expressed the position more artfully, linking it to democratic principles.  Of course, the incumbent President was elected to make nominations and the incumbent Senate was elected in part to perform the constitutional “advise and consent” role.  Again, practice is instructive.  In none of the 36 instances cited above does it appear that the Senate refused to consider a presidential nomination on the grounds that no nomination should be made.  Indeed, the President’s election year nominee was confirmed in 11 of 22 cases.  (This success rate is skewed by President John Tyler, who nominated 3 individuals seven separate times during the 1840 election year.  None of the three was ever confirmed.  Discounting this episode, Presidents were successful in 11 of 15 cases.)   Of the 11 nominations made by lame duck Presidents, 7 were confirmed.  This should stand as powerful practical evidence that nominating and acting on a nomination in proximity to an upcoming presidential election does not offend the principle that the Supreme Court nominations should be accountable to the people.