The passing of Justice Scalia and the premature debate about his successor
The one time I met the late Associate Justice Antonin Scalia, he talked about how much he loved hunting quail. It is good that he was able to spend his last day in this mortal realm on a quail hunt.
Back in 2012, when I was president of the State Bar of Georgia, Justice Scalia spoke at a dinner I attended at the World War II museum in New Orleans, along with Buck Ruffin who was then unopposed to become president-elect of the Georgia Bar, and our wives. David Gambrell, a former Georgia Bar president and U.S. Senator, was receiving a lifetime achievement award at that dinner. Justice Scalia gave an inspirational speech about the Constitution, which he sought to interpret according to the original meaning of the words of the text rather than as some sort of free floating Rorschach ink blot test. I later borrowed liberally from Justice Scalia’s remarks in a president’s column in the Georgia Bar Journal.
After the dinner, Buck Ruffin and I buttonholed Justice Scalia. I told him how much I had enjoyed his point-counterpoint appearance with Justice Stephen Breyer at a South Carolina Bar meeting in Columbia a few months earlier, and that we would love to schedule a reprise of that in Georgia. He smiled and said, “I’ve always enjoyed hunting quail in Georgia.” Buck began then planning a 2014 Symposium on the Constitution in Atlanta featuring Justice Scalia, followed by a bird hunting trip on a plantation in south Georgia. Georgia Supreme Court Justice David Nahmias, who clerked for Justice Scalia, was helpful in scheduling that. Several of the State Bar officers who were in office at that time participated in bird hunt with Justice Scalia, but by then I was out of office and not included.
In a more decent time, folks might have refrained from media comments about a Supreme Court justice’s successor until after the funeral. I’m not so naive as to think there would not have been jockeying behind the scenes, but public decorum might have delayed the public debate while the family had its time of grieving. Unfortunately, we do not live in that era. Within hours after the news of Justice Scalia’s passing, the media were buzzing with speculation and it was a topic in a televised presidential debate. Senator Cruz immediately vowed to filibuster against any nominee, no matter who it might be.
The Constitution of the United States, which Justice Scalia interpreted according to the original meaning of the text, provides at Article II, Section II:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
President Obama should fulfill his constitutional duty to nominate someone to fill this vacancy on the Supreme Court. He should choose someone who would have been confirmed on arrival in less stridently partisan times. Then the Senate should fulfill its constitutional duty to “advise and consent.” It should at least holding hearings and consider the nomination on its merits rather than on a purely partisan basis. Senator Cruz’s vow to filibuster against any nominee before he even knows who it will be was, to put it mildly, intemperate and unworthy of anyone who aspires to become President of the United States.
Since there is no one currently on the court who has experience in elective office, there is something to be said for appointing someone with experience in the political rough and tumble. Since there is no one on the court who has ever spent any substantial time representing individuals who bleed when they are cut, that might be a consideration as well. There is no religious test for office, but since there are currently no Protestants on the Supreme Court in a country with a Protestant plurality, there is something to be said for appointing a Protestant.
Short lists of federal circuit judges are floating in the media, including
- Sri Srinivasan (48, DC Circuit, former deputy solicitor general, Stanford JD/MBA, Indian immigrant, Hindu, confirmed by the Senate three years ago, 97-0, when Senator Cruz called him a “longtime friend”).
- Merrick Garland (63, chief judge of DC Circuit, Harvard Law, Jewish, confirmed 76-23 in 1997, viewed as a compromise pick).
- Patricia Ann Millett (52, DC Circuit, Harvard Law, wife of Navy reserve officer, former assistant solicitor general, Methodist, confirmed 55-38 in 2013).
- Paul Watford (49, 9th Circuit, African American, UCLA Law, confirmed by 61-34 vote in 2012).
- Jane Louise Kelly (51, 8th Circuit, Duke, Harvard Law, former public defender in Iowa, confirmed 96-0 in 2013).
Hometown favorites for me in Atlanta would be:
Jill Pryor (52, 11th Circuit, Yale Law, 26 years in private practice representing both plaintiffs and defendants, confirmed 97-0 in 2014 as part of a package deal to fill six federal judgeships in Georgia).
- Julie Carnes (65, 11th Circuit, former Assistant U. S. Attorney and district judge, UGA Law, Fulton County State Court building is named after her father, confirmed 94-0 in 2014 as part of the same package deal).
Georgia Supreme Court Justice David Nahmias, who was on Harvard Law Review with President Obama, clerked for Justice Scalia and served in U.S. Department of Justice and as U.S. Attorney under President George W. Bush, might be a prospect under a Republican president.
Justice Scalia rightly criticized the composition of the Supreme Court as a “select, patrician, highly unrepresentative panel of nine,” all educated at Harvard or Yale law schools, with four of nine hailing from New York City. It would be healthy to look to the midwest or south and for candidates who are outside the mold of “tall building lawyers.”
Thinking outside the box of usual SCOTUS picks, the President might consider senators of his party who get along fairly well with Senate Republicans colleagues. That list might include:
- Chris Coons (52, Delaware, Judiciary Committee member, grad of Amherst, Yale Law, Yale Divinity, Presbyterian, former county executive).
- Cory Booker (38, New Jersey, Rhodes Scholar, Stanford and Yale grad, former mayor of Newark, African American Baptist, worked with Republican co-sponsors on criminal justice reform bill).
- Amy Klobuchar (55, Minnesota, Yale & Chicago Law, former prosecutor, Congregationalist).
- Sheldon Whitehouse (60, Rhode Island, Yale and Virginia Law School, former US Attorney and state attorney general, Judiciary Committee member, Episcopalian).
Governors of the president’s party who might be considered could include:
- Jay Nixon (60, Missouri, former state attorney general, University of Missouri Law School, Methodist, real world experience practicing in his hometown and in state senate before election as attorney general).
- Steve Bullock (49, Montana, former state attorney general, Columbia University Law School, some time in hometown private practice, United Church of Christ).
- Maggie Hassan (57, NH, background in private practice and as hospital counsel, Brown & Northeastern Law School, United Church of Christ, now running against an incumbent Republican Senator, which could make her a wild card pick because Republicans might want her out of that race).
Presidents usually prefer to appoint Supreme Court justices who are roughly 50 or younger. (I have some personal experience at the state level with “aging out of consideration” for a judicial appointment.) Politically, it might be prudent to select someone who has not been the subject of a bitter partisan confirmation battle in the past. By that standard, the list might be narrowed to Judges Srinivasan, Kelly and Pryor, Senators Coons, Klobuchar and Booker, Governor Bullock, and perhaps others.
Ken Shigley is a past president of the State Bar of Georgia and board-certified trial attorney in Atlanta