On the Court

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The news of the sudden passing of Supreme Court Justice Antonin Scalia shocked everyone. He’s 79, but it was still unexpected. One of the benefits of the news is that we learn more about the person – and in this case, the one who is more than a justice.

I admit that at one time I wasn’t a supporter of Justice Scalia on the court. I imagine that me disagreeing with many of his opinions was a prime reason – but in retrospect, it also had to do with no understanding his viewpoint.

A phone conversation with a friend changed my view, but not in the way you may think. It’s important to understand that I consider (and call) my friend a partisan hack, and there is no way his belief system regarding his comment is the same as mine – or even changed my opinion of Justice Scalia’s written opinions.

Although I cannot recall the context of the phone conversation we were having, I probably made a negative comment about Justice Scalia’s presence on the court. My friend explained that he was happy Justice Scalia is on the high court because Scalia is a leading spokesperson for a judicial perspective, and it is important for that voice to be heard.

That statement resonated with me then, it still does today, and will continue to be in my mind tomorrow. If one believes (like I do) that the Supreme Court is a court for all the people, it is imperative that the court have a diversity of thought. There is no question that Justice Scalia was smart and had a defined philosophy, but he also wanted smart justices in the other chairs to discuss the issues from varying views. No wonder he had good personal relationships with Justices Kagan and Ginsberg who are philosophically opposite of him.

Justice Scalia was a lightning rod as people either adored or loathed him on the court. Although I haven’t emphasized it on these pages, but for some time I have felt that the worst recent nomination to the bench wasn’t President Reagan’s appointment of Justice Scalia, but President Bush’s (GW/43) appointment of Samuel Alito.

NOTE: For those who forget, President Bush initially nominated John Roberts to replace moderate Justice Sandra Day O’Conner (retiring). Then Chief Justice William Renquist (conservative) died, and then President Bush changed the Roberts nomination to Chief Justice, which lead to Alito replacing O’Conner. 

Justice Alito is (now and then) unquestionably qualified, but if one believes (as I do) that the Supreme Court is for all the people, Alito’s appointment was a severe shift to one judicial view. Four justices of like mind did not fit my view of the highest court in the land … thus leaving one swing vote.

Probably sooner than later, President Obama will nominate justice for the current vacant position. Sure, there is a lot of political bluster about the vacancy – a topic in itself and not the purpose of this post. President Obama’s nominees currently occupy two of the nine chairs – and there is no doubt that Justices Kagan and Sotomayor are qualified and occupy the same niche on the judicial spectrum – and a space similar to longer-term Justices Ginsberg and Breyer.

I hope President Obama doesn’t make the same mistake as his predecessor made with Justice Alito. Now is the time for President Obama to nominate a moderate to the court … a centrist … A jurist who can swing to the left and to the right to help the court deliver meaningful decision … A jurist who listens to the different views in order to make a decision … A jurist who does not hold a predictable judicial view. After all, the US Supreme Court is for all people, thus apart from one philosophy. Then again, I’m probably asking for too much because the partisans will continue to look after their own selfish priorities, which is not a Supreme Court for all Americans.