Apres Scalia

Apres Scalia

Gilbert N. Kahn is a professor of Political Science at Kean University.

The saddest part about the brouhaha that has been generated over the replacement fight for Justice Scalia’s Supreme Court seat is that it detracts so much from the passing of an outstanding jurist and a wonderful person. There is so much ugliness being spawned on the current political cesspool which is Washington and on the campaign trail that many people have failed to stop and give proper recognition to the man.

Scalia’s legal and judicial record was highly controversial and while he had many supporters he probably had at least as many detractors. His judicial philosophy as an originalist was strict and virtually unbending, yet so many of his opponents have remarked how the tenacity of his views made them require a similar amount of rigor in their own. His good personal friend but tenacious judicial opponent, Justice Ruth Bader Ginsburg, remarked, that Scalia’s dissents or opinions made her own so much more cogent.  His standards permeated her need to validate her own positions with that much more argument.  

On a personal level Scalia was admired by all with whom he came in contact. He was a sought after speaker in D.C. but not exclusively for his judicial and intellectual insights, but for his sense of humor and genuine warmth. Much has been made of his love of opera but he also enjoyed the intellectual challenges and gamesmanship of the Court. In order to keep himself honest and for the love of the game, despite his own very distinct views on the law, Scalia always tried to hire a liberal lawyer to be one of his law clerks. When this man of small stature, who frequently could barely be seen from behind the high bench rocked forward to challenge an attorney, he would bellow forth leaving many lawyers almost shaking. At the same time he could be humorous in both his written as well as his oral comments.

Washington politics has become so ugly that Democrats and Republicans are only interested in scoring points not in making Government work. Ironically, given the crazy 2016 political season, no one can truly predict who will be the next President nor what the make-up of the next Senate will be nor what will be the rules that the next Senate might adopt concerning confirmation votes (super majority or majority).

The saddest part of the political situation today is that few if anyone truly cares about Scalia except whether, if, when, and how his vacancy on the Court ought to be filled. It is quite reasonable to assume that Scalia himself might have argued in favor of a very strict reading of the “advise and consent” provision of the Constitution. Fill my seat, because the Court has too much important business to conduct. 

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