Antonin Scalia and our divided land


Americans these days, it seems, can’t stop fighting long enough to have a funeral.

When U.S. Supreme Court Justice Antonin Scalia died in his sleep Friday night, the nation’s started squabbling over the processor of naming his successor within seconds.

The news of Scalia’s passing barely had broken before U.S. Senate Majority Leader Mitch McConnell, R-Kentucky, vowed that no Barack Obama nominee would receive a fair hearing before the fall election, which is nearly nine months away. McConnell’s pledge to remain obstinate received endorsement from GOP presidential candidates U.S. Sen. Ted Cruz, R-Texas, U.S. Sen. Marco Rubio, R-Florida and other grim-faced conservative obstructionists.

For their part, President Obama and Democrats promised to fulfill their constitutional duty and present nominees to the Senate for approval.

Thus, lines were drawn for a series of nasty political battles this spring, summer and fall.

So much for respect for the dead.

In a way, the brouhaha that will follow Scalia’s death is his legacy. The pugnacious and conservative justice was both a creator and a product of our relentlessly divided age.

There is no doubt about Scalia’s fierce intelligence.

I know several attorneys who have argued cases before the U.S. Supreme Court. They all tell the same tale – that Scalia’s mind was sharp as a saber. One lawyer, who disagreed with the justice on just about every major point of law, told me, “Scalia is just really, really, really smart.”

Scalia also could be a warm and congenial man. He spoke in interviews of his friendship with fellow Justice Ruth Bader Ginsburg, his ideological opposite number. Ginsburg, too, spoke warmly of the relationship she and her husband had with Scalia.

And yet….

The arc of Scalia’s service on the court bent from principled conservative intellectual engagement to increasingly dyspeptic divisiveness. Over time, he grew fond of indulging in temper tantrums disguised as legal opinions.

His nadir, not surprisingly, came in the litigation over the president’s health care reforms.

When the court affirmed the Affordable Care Act in 2012, Scalia wrote a dissent that argued, mind-numbingly, that even constitutional provisions in the law should be ruled unconstitutional – for reasons the justice could not articulate.

Three years later, when the court again affirmed Obamacare, Scalia issued another ill-tempered dissent.

In writing the majority opinion, Chief Justice John Roberts slapped down Scalia by quoting Scalia’s words and arguments from earlier decisions to rebut the dissent – a clear signal other members of the court thought Scalia’s animus toward Obama was clouding his judicial judgment.

In that, Scalia was reflective of both the court and his time.

Studies have shown that the supposedly dispassionate Supreme Court now is more partisan than it has been at any time in 50 years, if not in all of American history.

The country is, if anything, even more divided than the court – and every bit as inclined to disregard facts, logic and precedent as the late justice was in his later years.

At Saturday’s Republican presidential debate, both Cruz and Rubio argued the Senate should refuse to act on a successor to Scalia this year because no Supreme Court nominee had been approved during an election year “in 80 years.”

Both candidates overlooked the fact that a Senate controlled by Democrats approved President Ronald Reagan’s nominee (and current Justice) Anthony Kennedy’s in 1988, another presidential election year in which the chief executive had to leave office because of term limits.

That, unfortunately, is the way many self-proclaimed Reagan conservatives honor their hero today – by ignoring or forgetting what the Gipper actually said and did.

There are dangers for Republicans in delaying a vote on a Scalia successor.

Not only will they likely find themselves battling charges as they face voters that they are anti-Constitutional obstructionists, but they may forego their moment of maximum leverage. If Democrats hold onto the White House and reclaim control of the Senate, Republicans won’t have much room to maneuver or bargain and will have to take whatever nominee comes their way.

Consideration of such long-term implications, though, seems to be beyond GOP leaders at the moment, who are inclined, by reflex, to fight with Barack Obama at every turn.

Antonin Scalia died quietly over the weekend.

May he rest in peace, while the rest of us battle on in his name.