Justice Scalia was a great and good man. There is no one else around even remotely like him, and he is irreplaceable.
Not only that, I think he was on to something, about the proper place of judicial review under our Constitution, not fully grasped by any of other members of the Court. I’ll say something, maybe a lot, about this soon.
Speaking of the Constitution: The president has every right to nominate someone to replace Justice Scalia. He will surely do so, using the opportunity as a campaign tactic. The nominee will appeal to constituencies that the Democratic presidential nominee will need to mobilize to win, and the Republicans will be branded as anti-constitutional obstructionists.
The Republican leadership in the Senate should graciously accept said nominee and give him or her a full and respectful hearing. Those senators should then ascend beyond their typical pay grade by explaining clearly to the country why the nominee has a record that suggests that he or she would not defend the Constitution and the rights of particular Americans.
Nobody really believes anymore that a nominee for the Court can can be judged according to nonpartisan criteria of fitness. Justice Scalia explained time and again that that is the damage the Court did to our idea of judicial responsibility by recklessly politicizing itself. If the president’s nominee were to make it clear that, above all, the Court should do less, then it would be time for Republican senators to start listening attentively. That might be so even if his understanding of doing less includes a criticism of Citizens United.
Meanwhile, I only saw part of last night’s Republican debate. It seemed like Trump was completely out of control in a way that made it easy for the two Floridians — Bush and Rubio — to look sober and judicious by comparison. Kasich also seemed measured, but he gave no reasons why Republicans should think of him as someone who has a clue about the Constitution. (It’s always possible that Trump knew exactly what he was doing in ways the polls will soon reflect.)
Now some are saying that replacing Scalia is the reason we should rally around the hugely conservative Cruz. Others say that the future of the country and its Constitution depends, more than ever, on the election’s outcome. So let’s go with the electable Rubio, who is, after all, plenty conservative. We have to hope that reasonable men and women see that Trump can’t be trusted when it comes to any decision requiring constitutional judgment.
On the Democratic side, the duty to replace Scalia with something like his opposite will, of course, help Clinton’s campaign. Her campaign is identified far more with the identity-politics issues the Court has spotlighted, and she is a lawyer. She and her supporters will call on all Democrats to get in line behind the more electable and trustworthy candidate.
Sanders, the gentleman, remarked on hearing of Scalia’s passing that, although he disagreed with almost all of his opinions, he was a “brilliant” and “colorful” person. That’s not going to help Bernie, although surely it should.