The Corner

On Scalia and the Politics of His Replacement

The human side of Justice Scalia’s death is, of course, devastating.  He was a legal titan, but above all, he was a man of deep, abiding faith in God.  He will, I’m certain, have his reward.  My prayers are with his wife, Maureen, his children, grandchildren and extended family of law clerks.

The politics, unfortunately, don’t wait for the eulogy to be read.  It wasn’t two hours after I learned of Scalia’s death yesterday that the New York Times had contacted me for a quote about what was to come.  I don’t fault them for that.  It’s a natural question in an election year or any year.  The Supreme Court has taken a place as one of our key political institutions, quite wrongly.   That people would instantly think of the politics of the appointment process is simply a natural byproduct of the outsized role the Court has taken in American life.

As far as those politics go, there simply is no precedent in modern times for filling a vacancy that arises in an election year.  You have to go back to Benjamin Cardozo in 1932 to find a similar circumstance.  Democrats have pointed to the appointment of Anthony M. Kennedy in 1988, but that vacancy arose in June 1987, the summer before the election, and only remained open because Democrats had already blocked one of the most qualified nominees in our history from the Court (Robert Bork). 

Beginning largely with Bork, Democrats have shamelessly politicized the confirmation process in the last several decades.  More recently, they changed longstanding Senate rules for the sole purpose of packing the D.C. Circuit (viewed by most as the most important appellate court short of the Supreme Court) with Obama appointees.  That after blocking highly qualified Republican nominees for those same seats during the Bush administration.  My dear friend Peter Keisler was nominated by President Bush to the D.C. Circuit in the summer of 2006, fully two and half years before President Bush would leave office.  Peter never got a vote out of the Judiciary Committee, let alone a floor vote in the Senate.  Once the Democrats took control of the Senate that fall, Peter’s nomination was dead.  And not for any reason having to do with Peter’s qualifications, which were superb. 

Democrats have viewed their role in the confirmation process as an exercise in raw political power.  Their complaints that the American people should not be trusted to decide who should fill this vacancy as part of the presidential election ring hollow.

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