Eleven years ago, Antonin Scalia remarked that he wouldn't want to go through the political process again to get confirmed. Perhaps Scalia is happy to have necessarily missed his own passing — and the nasty political fight that immediately broke out upon the news of his death.
Sadly, the scope of Justice Scalia's life did not manage to overcome the political impact of his death. And so Americans should not just mourn the death of the Supreme Court's longest-tenured jurist in this session, but the breakdown of the legal and political process that turned Scalia into an afterthought in his own demise.
Scalia began his judicial career under Ronald Reagan after having served in the Office of Legal Counsel under Gerald Ford. Appointed at first for the Court of Appeals for the District of Columbia Circuit, Scalia's towering intellect made him an obvious choice for the Supreme Court. Four years later, when Chief Justice Warren Burger announced his retirement, Reagan had an opportunity to appoint either Scalia or Robert Bork, and chose the younger Scalia.
The expectations of judicial confirmations in general, and Supreme Court nominations in particular, were much different 30 years ago. The general consensus held that elections had consequences, and presidents were entitled to significant deference on appointments — even those with lifetime tenure, such as the federal bench. Senate rejection of Supreme Court nominees was not unknown, but even substantial opposition was rare.
Despite a record of conservative decisions, Scalia benefited from that comity. Chosen in part for his youth and vigor, Scalia charmed the Senate Judiciary Committee and the upper chamber as a whole. He won confirmation on a 98-0 vote to become the first Italian-American to sit on the Supreme Court.
That turned out to be the last gasp of comity in judicial nominations. Less than a year later, Justice Lewis Powell retired, giving Reagan one more opportunity to appoint a Supreme Court justice, and this time Reagan chose Bork. Democrats reacted angrily, in part because Bork had played a significant role in Watergate's "Saturday Night Massacre." Of course, that was hardly the only reason that Democrats rallied to oppose Bork, who had made it clear that he found previous Supreme Court rulings on privacy to be unsubstantiated. His critics assumed that Bork would vote to overturn those precedents, especially the Roe v. Wade decision that legalized abortion as a constitutional right. Pro-choice groups rallied opposition, and after a brutal confirmation hearing, Bork's nomination went down in defeat. Bork would later resign his seat on the DC Circuit in protest.
That touched off the politicization of judicial nominations that has overshadowed the death of Scalia. Democrats attempted to humiliate Clarence Thomas, but failed to defeat his nomination. Republicans delayed or blocked Bill Clinton's judicial appointments, and then Democrats responded with so many delays during the Bush years that it took the Gang of Fourteen deal in 2005 to retain the Senate filibuster and get some judicial appointments through the Senate.
Even after that, Barack Obama himself voted to filibuster the confirmation of Samuel Alito in 2006. Going even further, Chuck Schumer pledged in mid-2007 that the Senate would approve no more Supreme Court nominations while George W. Bush was president — a promise that did not get tested, as it turns out. When Barack Obama became president, Republicans fought his appointments until Harry Reid imposed the "nuclear option" that ended filibusters on judicial nominations, except for the Supreme Court.
That brings us to today, when one of the longest-serving members in the court's history has largely been forgotten in an unseemly scrum over who replaces him, and when. Republicans have adopted Schumer's 2007 position, while Democrats forget that the Senate has no obligation to approve nominees — and that it was Democrats who were largely responsible for dispensing with deference to elected presidents in judicial appointments.
A number of well-meaning thinkers have proposed stopgap solutions for this impasse. Jonathan Adler at The Washington Post suggested that a recess appointment of a retired Supreme Court justice could act as a stopgap until the next president takes office. Some argue that an open seat will actually work in favor of compromise; it would not affect cases that will get a substantial majority on the court, but any 4-4 ties that Scalia's vote would have settled will result in punts that have no precedential weight. Others want the Senate majority to work with the president to select a handful of mutually acceptable candidates, with the promise of expedited confirmation — even though all of the political incentives will drive both sides away from compromise.
None of these solutions will work in a system where people lack the basic understanding of constitutional prerogatives on both ends of Pennsylvania Avenue, and in which the Supreme Court has eclipsed both Congress and the president in creating policy. Scalia, ironically, spent nearly three decades attempting to move the court back to a less activist model. Had that effort succeeded, it would have made his own passing remarkable in itself rather than a bugle call for both sides to divvy up the spoils.
Even with that, the epic breadth and depth of Scalia's impact on American jurisprudence may take several more decades to be fully appreciated. At the moment, though, the nearly 30-year tit-for-tat judiciary battle between Republicans and Democrats only deepens the belief among voters that America's institutions are failing its citizens, and that will be yet another reason for voters in both parties to look outside those institutions to make them work once more.