Justice Scalia’s passing provides challenge — and opportunity

By Arthur I. Cyr

The death of U.S. Supreme Court Associate Justice Antonin Scalia leaves a vacancy in a judicial position which has also been highly partisan. He was one of the most prominent and outspoken conservative political as well as legal voices in the country. Scalia spearheaded public as well as partisan political engagement by judges.

In early 2011, Justice Scalia met with members of the conservative Republican Tea Party caucus of the U.S. House of Representatives. This meeting was initiated by right-wing House member Michele Bachmann. Yet in more personal terms, Scalia personified the diversity and inclusion which are at the core of U.S. values, confirmed by the American Revolution. He was the son of Italian immigrants. Nominated by President Ronald Reagan, he was the first Roman Catholic to join the Supreme Court since Justice William J. Brennan, an Eisenhower nominee in the 1950s. Diversity and inclusion taken together imply compromise. Scalia the jurist developed a reputation for marked lack of compromise. His opinions are colorful, emotive and a departure from the traditional measured unemotional prose of judicial decisions. He could be scathingly sarcastic toward those expressing opinions different from his. The United States endures arguably primarily because of a basic faith in the rule of law. It has a fundamental commitment to the foundation of established legal principles and precedent. Arguably, political conservatives who value tradition should have an advantage. Chief Justice John Roberts, nominated by President George W. Bush, had a deserved reputation for being mindful of the limits of the law, a cautious conservative who put tradition over contemporary popular opinion. Roberts’ Harvard credentials and smooth style provided a professional armor useful in fending off partisan attacks. His erudite demeanor was successful against Democrats during the confirmation hearings. Bush White House shrewdness was evident in selecting a nominee who stood apart from partisan wrangling, in which Scalia enthusiastically participated. The White House could argue that professional credentials outweighed political litmus tests. Appearing above crass political calculation in this case gave Bush the political high ground.