The Scalia legacy goes way beyond the legal system
by digby
I wrote about Justice Scalia’s legacy for Salon today:
It’s ironic, to say the least, that the passing of Justice Antonin Scalia, a man known for the legal doctrine of “originalism,” would immediately lead the majority leader of the Senate to declare that no nominee to replace him would be confirmed until a new president is inaugurated in a year’s time. The founders would very likely scratch their heads in wonder at Mitch McConnell’s odd statement that “the American people should have a voice in the selection of their next Supreme Court Justice, therefore this vacancy should not be filled until we have a new president.” They would likely point out that the American people did have a voice in that decision in 2012, when they voted for Barack Obama for a four year term. There’s nothing in the Constitution that says after three years the president is no longer authorized to nominate Supreme Court Justices.
Be that as it may, the reality is the Republican Senate is not going to confirm anyone President Obama sends up, and I don’t think anyone would imagine otherwise. What’s startling about McConnell’s statement is the fact that he said it so openly. It’s another example of the reckless disregard of political norms, traditions and the rule of law by the modern GOP. In the old days, they would have at least paid lip service to the idea that a president is obligated to nominate Supreme Court justices and the Senate is obligated to fulfill its advise-and-consent role. Sure, they would delay the nomination, but to just announce upfront that they have no intention of following the usual procedure is a new thing. They don’t even pretend to care about preserving the integrity of the institution.
Last night in the GOP debate, all the candidates backed up McConnell. It would seem they too believe that even the pretense of normal constitutional processes is no longer necessary. This will be good to keep in mind as they bray incessantly about President Obama’s use of executive orders as if they were acts of treason. (By the way, his use of Executive Orders is right in line with all modern presidents, including Republicans.)
But then, if there’s one Supreme Court justice who exemplifies this propensity of modern American conservatives to bend the system for partisan ends when needed, it was Justice Antonin Scalia. His legacy as a hardcore legal conservative is second to none, but it will always be over-shadowed by one decision: Bush v. Gore. The Republicans had already begun the process of destroying the integrity of Congress with its partisan witch hunts and the impeachment circus of the 1990s; but if there’s one Supreme Court ruling that paved the way for the total abandonment of any pretense of dignified non-partisan adherence to traditions for the sake of preserving the integrity of our institutions in the eyes of the public, it is that one.
Indeed, Justice Scalia may have written the single most fatuous line in Supreme Court history with his brief concurrence in that case: