With the death of U.S. Supreme Court Justice Antonin Scalia on Feb. 13, despite the political climate surrounding a timeline for the next nominee to the court, the balance of the court will more than likely change.
“Scalia was thought to be one of the best scholars of legal issues in the Court’s history,” Judge Donald Barnes, of Sedalia, said. “Scalia was first and foremost an advocate of constitutional originalism or textualism and although his passing will not have an impact on every day litigation in Pettis County, except in criminal cases (for example, Barnes noted decisions affecting search and seizure) it does come at a very interesting time in our political process.”
Barnes, who served on the bench in Pettis County from 1977 to 2005, explained that as an originalist, Scalia thought the meaning and intent of the words written in the Constitution by the founding fathers should be interpreted conceptionally as they were written.
As an example, Barnes referred to Scalia’s firm belief in privacy rights.
“Scalia was an advocate to the privacy rights of an individual,” Barnes said. “I’m sure the recent matter involving Apple and the government’s request for their help in accessing the phone records (of accused San Bernardino terrorist suspect Syed Farook) would be one right down (Scalia’s) line.”
Scalia wrote in the majority opinion in Arizona v. Hicks, 1987, “There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.”
Barnes added that the timing of Scalia’s death was both unexpected and untimely.
“It came at a very bad time because now the nomination will become a political issue,” Barnes said.
Upon the death of a Supreme Court justice, the constitution grants the power to appoint the next justice to the President of the United States with the confirmation of nominee resting with the Senate.
Within hours of Scalia’s death, many members in the Republican-controlled Senate, including Majority Leader Mitch McConnell, stated they would not grant a hearing to approve any nominee President Barack Obama may make to the court, stating the right to appoint should be given to the newly elected President in the 2016 presidential election.
Whomever Obama appoints to the court, they will more than likely face a difficult confirmation process.
Confirmation to the court requires a vote of 60 senators. The Democrats have a 46 to 60 minority in the senate, meaning 14 Republicans would have to support Obama’s nominee for confirmation.
David Holiway, law and government teacher at Smithton High School, agreed that Scalia’s passing comes at a bad time politically.
“I’m sure Scalia, as a strict constitutionalist, would be appalled by this (debate),” Holiway said. “The great loss is to have the court, which should be insulated from politics, drug into the political fray.
“One of the biggest ironies is that Scalia always felt the Constitution should be interpreted as written, which allows first and foremost for the President to appoint whenever a vacancy occurs,” Holiway added. “Whenever politics are injected into the court it weakens the prestige of the court.”
The last time a lame duck president appointed a nominee to the court was in 1987 when President Ronald Reagan appointed Justice Anthony Kennedy to the court.
Kennedy was confirmed unanimously (97-0) in early 1988, but was the third nominee for the seat that was vacated by the retirement of Justice Lewis Powell in 1987.
Hope Lecchi can be reached at 660-826-1000 ext. 1484