By Judge Frederic Block
I am writing this article the day after Justice Antonin Scalia died. I am under no illusion that the vast majority of WestView readers are no fans of this reputed leading voice of the so-called conservative ranks of the High Court. Many of them probably hope that his replacement will be more ideologically aligned with the so-called liberal justices.
While I hold personal views of who I would like to replace Justice Scalia, it would be inappropriate for me to publicly express them. The reason is simple. As a sitting federal district court judge, I am duty-bound to uphold the integrity and independence of the Judicial Branch of our government, and my personal political views have no place there. I take seriously my responsibility to apply the law to everyone who walks into my courtroom without regard to whether that person is a Democrat, Republican, Independent, Tea Party member, conservative, liberal, or whatever.
But what I can write about is the need for the public to understand that the federal judiciary is an institution, and a non-corrupt one (unlike the judiciaries of many other countries), that historically has transcended divisive politics, and made our federal judicial system the envy of much of the civilized world. And that includes the Supreme Court.
I remember the speech that Justice Brennan gave after he retired. He was asked whether he feared that all the so-called liberal, progressive decisions he authored would be undermined by a revengeful “conservative” majority. Surprisingly, he was not worried at all. He held firm to the belief that the institutional fabric of the Court would always transcend political labels and warfare, as well as ideological differences.
History has proven him correct. Time after time, predictions by the politicians and lay public of how the High Court would vote on any given issue have proven inaccurate. Who would have thought that it would approve same sex marriage, or that Chief Justice Roberts would cast the decisive vote and write the majority opinion upholding the critical aspect of “Obamacare?” And who would have predicted that when Justice Blackmun was appointed to the bench as a reliable conservative Republican, he would author Roe v. Wade? The history of the Court is replete with such “surprises.”
Scalia fit that mold perfectly. Sure he had strong-held beliefs on how the Constitution should be interpreted, and his “originalist” dogma was at odds with those who viewed the Constitution as permitting issues to be decided more in keeping with the changing societal landscape. But his commitment to the “rule of law”—as he envisioned it—and his scrupulous scholarship could not seriously be doubted. Because of that, Scalia often rendered decisions contrary to his personal beliefs, and squarely in line with knee-jerk liberal perceptions.
Adam Liptak, in his obituary for The New York Times, pointed out, for example, that Justice Scalia helped transform key aspects of criminal law in ways that helped people accused of crimes, including: strict adherence to the right of confrontation of witnesses under the Sixth Amendment, the striking down of vague criminal statutes that did not give criminal defendants fair notice of their crime, and one that I am most appreciative of every time I sentence a criminal—the striking down of a rigid system of sentencing that precluded judges from exercising sound sentencing discretion.
And how about his dissent in Hamdi, where he took issue with Justice O’Connor’s plurality opinion that the Constitution could be massaged to give American citizens detained at Guantanamo something less than full due process under the Fourteenth Amendment? Would any WestView reader believe that he wrote these words?
“Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis – that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or moderates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.”
If the reader didn’t look, he or she would have bet the ranch that all those decisions were written by one of the “liberal” judges.
Although Justice Scalia would undoubtedly want his successor to be of his judicial philosophical bent, I suspect that he would rail against any efforts to play games with his beloved Constitution, that he would expect the sitting President to nominate his replacement, and the Senate to fulfill its Constitutional obligation to give that person a vote—be it up or down.
There will be a political war over Justice Scalia’s successor. Key social issues will be decided by the next group of judges, and I may or may not personally approve of the results or the judge who will be replacing Justice Scalia. But I agree with Justice Brennan’s belief that our Supreme Court—and I might add, the rest of the federal judiciary—will survive as an institution we should all be proud of.
Judge Frederic Block is a federal district judge for the Eastern District of New York and author of Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge.