The death of Supreme Court Justice Antonin Scalia leaves a vacancy in a judicial position that has also been highly partisan. He was one of the most prominent and outspoken conservative political as well as legal voices in the country. Scalia spearheaded public as well as partisan political engagement by judges.
In early 2011, Scalia met with members of the conservative Republican tea party caucus of the U.S. House of Representatives. This meeting was initiated by then-Rep. Michele Bachmann, R-Minn.
Yet in more personal terms, Scalia personified the diversity and inclusion that are at the core of our nation’s values, confirmed by the American Revolution. He was the son of Italian immigrants. Nominated by President Ronald Reagan, he was the first Roman Catholic to join the Supreme Court since Justice William J. Brennan, an Eisenhower nominee in the 1950s. Diversity and inclusion taken together imply compromise.
Scalia the jurist developed a reputation for marked lack of compromise. His opinions are colorful, emotive, and a departure from the traditional measured unemotional prose of judicial decisions. He could be scathingly sarcastic toward those expressing opinions different from his.
The United States endures arguably primarily because of a basic faith in the rule of law. We have a fundamental commitment to the foundation of established legal principles and precedent. Arguably, political conservatives who value tradition should have an advantage.
Chief Justice John Roberts, nominated by President George W. Bush, had a deserved reputation for being mindful of the limits of the law, a cautious conservative who put tradition over contemporary popular opinion. Roberts’ Harvard credentials and smooth style provided a professional armor useful in fending off partisan attacks. His erudite demeanor was successful against Democrats during the confirmation hearings.
Bush White House shrewdness was evident in selecting a nominee who stood apart from partisan wrangling, in which Scalia enthusiastically participated. The White House could argue that professional credentials outweighed political litmus tests. Appearing above crass political calculation in this case gave Bush the political high ground.
Unfortunately, Roberts on the Supreme Court has neither developed consensus nor practiced cautious conservatism. The 5-4 decision in 2010 on Citizens United v. Federal Elections Commission effectively has overturned decades of government limitation on campaign spending.
Historically, presidents have gotten in trouble for appearing to practice crass, obvious politics regarding the Supreme Court. FDR’s effort to pack the court led to an embarrassing defeat by his own party. Richard Nixon’s two initial nominations for the court were widely regarded as second-rate. He had gotten mileage in the past out of anti-intellectualism, but found this approach rejected in regard to our highest judicial body.
Collegiality along with quality is needed on the court today. Roberts’ predecessor William Rehnquist was highly intellectual. He also presided over a series of divided and divisive 5-4 decisions.
Six decades ago, new Chief Justice Earl Warren spent months consulting fellow justices about the pending landmark school desegregation case, with the result that a decision that would have been closely divided was instead 9-0. The current court has contributed unfortunately to our wider domestic political chasm separating the two parties.
Warren was a career politician, of the sort effective on the court. By contrast, today academics, activists and ideologues are much more likely to be nominated.
President Barack Obama and Senate Republicans have an opportunity to cooperate. That remains unlikely — but vastly frustrated Americans would applaud.
Arthur I. Cyr is Clausen Distinguished Professor at Carthage College and author of “After the Cold War.”