December 3, 2023

U.S. Supreme Court Justice Antonin Scalia, a traditionalist who fought for the interpretation of the words of the Constitution to stay relavent as a Supreme Court Justice for three decades, died Feb. 13 at the age of 79.

Scalia worked as a U.S. Supreme Court justice after President Ronald Reagan appointed him in 1986, and the Senate confirmed him with a 98-0 vote.

“He was an extraordinary individual and jurist, admired and treasured by his colleagues,” Chief Justice John Roberts said. “His passing is a great loss to the court and the country he so loyally served.”

Scalia was committed to his judicial philosophy of traditionalism, the interpretation of the Constitution as it was understood at the time it was written by those who drafted and ratified the Constitution. With his traditional approach of law, Scalia stood up for conservative principles and was a defender of the separation of powers.

The judicial philosophy of postmodernism, typically held by some Democrats, is the interpretation of law as by the people and the belief that the intentions of the drafters of the Constitution are to be taken in a modern context.

Dr. Daniel Skubik, professor of law, ethics and humanities, said in an email his initial reaction of the news was one of shock and said his prayers are for the peace of his soul and comfort for his family.

He said his second reaction was how disruptive his death will be to the remainder of the U.S. Supreme Court term this year with many important cases he said he beileves are now more likely to end with a 4-4 vote and no majority decision or national resolution of the issues.

With a vacancy in the court, President Barack Obama said he plans to fulfill his constitutional responsibility to nominate a successor in place of Justice Scalia.

“My third reaction was the concern that the president will have a difficult time nominating someone to replace Justice Scalia who will pass Senate approval, meaning the court would have just eight members not only for the rest of this year, but virtually all of next year as well,” Skubik said. “A hobbled court, the third principal branch of our federal government, will have a difficult time effectively exercising its role as our judicial authority over the country.”

Scalia’s death sparked an immediate debate about whether Obama should fill the seat in an election year. Donald Trump, Republican presidential front-runner, called on Senate Republicans in a GOP debate Feb. 13 to block any effort by Obama to nominate a successor. Others such as Sen. Harry Reid, Senate minority leader, said on Twitter he believes the president can and should send the Senate a nominee right away.

Skubik said there are political consequences during this election season, not only for the presidency but for those in Senater seats — many of whom are Republicans running for re-election.

“A perception that the Senate is delaying consideration of a replacement without good reason will potentially put some Senate seats at risk and even lead to (the) return of Democrats’ control of the Senate,” Skubik said. “The current calls by several Republican presidential primary candidates to delay any nomination of the president can all too readily backfire on them and the party.”

While appointments are made with the advice and consent of the Senate, Skubik explained it is the president who presents a nominee, and the nominee is one who broadly shares the president’s jurisprudential views.

“It makes a real difference whether a President Bush nominates someone like John Roberts, or President Obama nominates someone like Sonia Sotomayor,” Skubik said. “Whomever is elected president this coming November will likely have an appointment or two to make for the court, and that influence lasts as long as that person serves on the court, often for several generations.”

Skubik said if Obama’s upcoming nominee is rejected by the Senate, the new president will have this slot to fill immediately. However, Skubik explains it is important for voters to not be swayed by claims that precedent demands that a president not make an election year nomination as there is no such precedent in law or in history.

“It is certainly a political matter and there will be much politicking about anyone who is nominated,” Skubik said. “But there is plenty of time remaining for both the president and the Senate to perform their constitutional duties, supported by law and demonstrated in history.”

President Obama did not attend Scalia’s funeral Feb. 20. Instead, Obama and first lady Michelle Obama payed their respects Feb. 19 at the Supreme Court.

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