Justice Antonin Scalia made headlines and raised eyebrows back in October 2011, when he and Justice Stephen G. Breyer testified before the Senate Judiciary Committee about the role of judges in the U.S.
What could have been a retiring conversation about the sausage-making machinations of government (CSPAN was there to record more than two hours of the proceedings ) was more memorable because of Scalia’s opening remarks, which begin at about minute 19 of that CSPAN video: “Americans should learn to love the separation of powers and learn to love gridlock.” That, Scalia said, is what distinguishes our government and normally ensures that “the legislation that gets out will be good legislation.”
That day and in subsequent speeches, Scalia heralded the genius of our structure, which makes it hard to pass something in a bicameral Congress that also must be signed into law by a president. The framers, Scalia said, wary of “excess legislation” would have cheered and said, “Yes! That’s exactly the way we set it up; we wanted this to be contradicting power.”
These remarks, though aimed at our legislative process, seem applicable to the political tug of war going on now between the U.S. Senate (which is divided itself) and President Barack Obama’s executive branch over filling a Supreme Court vacancy — ironically the one occupied by Scalia until his death in Texas Saturday.
I have to think if Scalia were in a position to observe this, he would be far less emotional than today’s Senate leaders and Obama’s administration. Ugly as it is, this is the way it is done. Both sides invoke “elections have consequences,” and both are correct. Obama has every right and duty to nominate Scalia’s replacement. The duly elected U.S. Senate with a Republican majority has every right and duty to question the nominee and then take an up or down vote — or ignore Obama’s nominees until a new president takes over, if they are still in power in 2017.
What all the parties may be underestimating are the the political consequences of their actions now. Republicans — especially presidential candidates and U.S. Senators up for re-election — have the most to lose. But they seem unfazed. Somebody should remind them that less than a week ago they had the “balance” they sought until fate intervened. Fate awaits us all, of course, and three other justices are around Scalia’s age of 79; Ruth Bader Ginsburg, 82; Anthony Kennedy, 78; and Breyer, 76.
Seems to me the next president will have ample opportunity to restore any perceived loss of ideology on the bench, which, as the rulings of past and present Supreme Court justices have proved, is not something one can count on.
My advice to those pushing the panic button: Be careful what you wish for.