Thursday, February 18, 2016

Whither SCOTUS, Absent the Great Taker?

A small spaceship landed on the National Mall three or four years ago.  A dyslexic Martian emerged and flagged down passers-by.  “Lead me to your taker,” he said.  They led him to Antonin Scalia’s office in the Supreme court building.

Scalia died as he liked to live — comped.  There is no code of ethics for SCOTUS justices, who have lifetime appointments.

With Scalia’s death while a free guest at a luxury ranch in Texas, President Obama is required by the Constitution to nominate a successor.  The Senate is required by the Constitution to vote on confirming that nominee.

Obama has promised to fulfill his Constitutional role with due diligence.  The Republicans in the Senate are threatening to refuse to do their duty.  Many of these Republicans were in the Senate when Ronald Reagan nominated a Supreme Court justice (Kennedy) in the last year of his presidency.  Their position today is 180 degrees from their position when Reagan was a lame duck president. 

But hypocrisy is par for the Republican course, just as taking freebies was par for Justice Scalia’s course even when his taking represented a clear conflict of interest.

It is impossible to overstate the damage Scalia did to the fragile notion of American democracy during his tenure on the high court.  Probably his most evil legacy is Citizens United, the ruling that engraved in stone the myth of corporate personhood and enabled Big Business and Banking to buy the United States government, lock, stock and loophole.Through his opinions and influence on his fellow conservative members of the court, he foisted on the American people extremist views of presidential power, constitutional originalism and right-wing Catholicism as personified in the secret society Opus Dei, of which he was a proud member.  

Once, Americans of the patriotic left would have rejoiced in the opportunity for a Democratic president to appoint the successor to the intellectual leader of the Supreme Court’s conservatives.  Now, alas, his nominee must face the confirmation procedure in a Senate with 47 members who committed treason by openly trying to undermine the official diplomacy of the head of state.

Even if the Republican obstructionists back down from their vow to refuse even to consider Obama’s nominee, it would take a small miracle to move the nominee through the vetting process of the Senate Judiciary Committee.  Then, at least five Republicans would have to cross party lines to vote for confirmation.  I count nine Republicans who, in my opinion, possibly might have the courage, integrity and intellect to weigh a nominee’s qualifications with fairness.  Thus, if the matter gets that far, at least five of them might conceivably find in favor of whomever the President presents to them.  

There are more “ifs” in this scenario than there are lies on the Republican presidential debate stage. But it could happen.

Vice President Biden, among many others, says it is not likely that Obama will go out shopping for the most liberal jurist he can find when choosing a nominee.  The Obama court, if it came to be at all, would not be as reliably liberal as the Roberts court has been reliably conservative. 

But it would almost certainly have a more ethical justice than Scalia the mastertaker, and it would surely have more judicial probity than the blatantly political court he so powerfully influenced.

Perhaps it would even have the wisdom to revisit Citizens United and decide that, no, Exxon-Mobil is not a “person.”