Antonin Scalia (COL ’57), U.S. Supreme Court Justice and Georgetown alumnus, passed away on Feb. 13 in Texas at the age of 79.
According to the San Antonio Express-News, Scalia was at the Cibolo Creek Ranch south of Marfa, Texas. Scalia appears to have died of natural causes, officials told the Express-News, and no foul play is suspected.
In a statement released on Feb. 13, Texas Governor Greg Abbott described Scalia as  “a man of God, a patriot, and an unwavering defender of the written Constitution and the Rule of Law.”
Scalia was appointed to the Supreme Court in 1986 by Ronald Reagan. He attended Georgetown from 1953 to 1957, and studied history. He graduated summa cum laude and was named valedictorian.
This story will be updated as more information becomes available.Â
I am in London this weekend and just hearing this sad news. While I did not agree with many of Justice Scalia’s opinions, I did honor the fact that he was a Georgetown graduate and a man of strong principal. A member of the Court since nominated by President Ronald Reagan, Justice Scalia received a 98-0 Senate confirmation vote. This is a significant moment in US history. The Court has a number of pending decisions including he affirmative case of Fisher v. The University of Texas.
In addition, there are any number of cases pending argument and decision. President O’Bama will face many challenges in addressing this vacancy. The process of filling a Supreme Court vacancy involves three important steps:
1. Nomination by the President
2. Approval (majority vote needed) by the Senate Judiciary Committee
3. Approval (51 votes needed) by the US Senate
Complicating this matter is that 2016 Is a Presidential election year. The White House has announced today that the President will nominate someone to fill the vacancy. Senate Majority Leader Mitch McConnell is being quoted as suggesting that the vacancy should be filled by he next President. In my opinion, any notion of waiting almost a year to fill a Supreme Court vacancy is unreasonable and unfair. The consequences of having only eight Justices to decide important cases is all too real.
How is it unfair to the country? You’re saying the other 8 are unable to to do the job absent one member. If true, what does that say about their being competent to be on the Supreme Court.
Obama has every right to nominate a justice. And the Senate has every right to turn him down until a new president is elected if they don’t believe he or she is has nominated someone who will be faithful to the Constitution of the United States of America.
Considering Obama’s use of executive orders and his open disdain for the Constitution, it would be wise for the Senate to delay until a Republican is elected, or until Obama is willing to appoint a principled Constitutionalist to the court.
While I appreciate the concerns that have been expressed by elected officials and others regarding the timing for nominating someone to the Justice Scalia vacancy, I respectully suggest that the Founding Fathers have given us the answer. The US Constitution provides for a process under which the President nominates and the Senate votes to confirm or not to confirm the nominee. With a Democrate in the White House and a Republican controlled Senate, I have confidence that the process will work just as it always has.
To suggest that the decisiion to replace Justice Scalia should wait some 12-15 months (the process itself takes months), is unreasonable and unfair. Can 8 Justices decide cases? – of course they can. But, this is not the system that the Constitution created. The potential for 4-4 votes is all too real. While a 4-4 vote is a final determination (decision of the lower court prevails), it hardly establishes a national precedent. In recent years, the Court has frequently decided cases by a 5-4 vote. Having nine Justices to decide important cases is critical to a fair outcome.
Last Fall, the Supreme Court, for the second time, heard argument in the case of Fisher v. University of Texas. At issue here is the future of affirmative action in university admissions policies. Some legal experts have suggested that the future of affirmative action beyond academic interests is at stake. During the oral arguments, Justice Scalia was very vocal in his criticism of the University’s policy – he flat out questioned the need for such a program that established certain admissions preferences. Not only will Justice Scalia not have a vote in the Fisher case, Justice Elena Kagan has excused herself from the case due to a potential conflict of interest. Justice Kagan had previously worked in the Obama administration when the merits of the Fisher case were being considered. That leaves only seven Justices to decide the future of affirmative action. At least this is one case that will not result in a tie vote.
This is a presidential election year. Is it any wonder that within hours of Justice Scalia’s passing, elected officals on all sides of the aisle were drawing a line in the sand?
Delaying the nomination and confirmation process is not a solution. It is a statement that we have a broken system. Let me argue that the system is as solid as we want it to be. Allow the process created by the Founding Fathers to work. It always has and with any luck always will.
The process allows for cases to still be decided and those that end up in a tie have the lower court’s decision stand within that particular court’s jurisdiction until it is brought before SCOTUS once again, which would most certainly happen when there are nine justices on the bench again. Most decisions are not 5-4 anyways and ties are likely to be only in a minority of cases (around 25% if we give them the same number as 5-4). So it’s not like the cases wouldn’t eventually be decided. The law and justice moves slowly. That’s just the way it is in this world. And America is better off waiting another year until someone who actually respects the Constitution can be appointed, instead of affirmative action candidates like Sotomayer or Kagan who were essentially diversity hires and believe the Constitution is a malleable, “living and breathing,” document, as opposed to a set of principles and guidelines that should be followed based on the original meaning of the amendments.
And let’s be honest, if the positions of the Democrats and Republicans were switched, the Dems would be delaying just as the Republicans are intending to do now.