Antonin Scalia and the Failure of Political Culture in America

There are things we should not do. And, unfortunately in American politics, we fail to heed those cautions. There are many temptations in the modern political communication culture. Among the most prominent is the temptation toward wit, or base humor, or the need to define one's space in the context of political events. The passing of Justice Antonin Scalia will serve as a test of our civility. And, sadly, we are failing. We are failing in our institutions and we are failing in our character. Why?

The passing of Justice Scalia tests our civility because it is the most notable death of a major public figure in the era of the new media. We have never had a justice or president pass away in the ten years of the era of Facebook, Twitter, and the other new communication tools that now pace our communications. Justice Scalia passed in his sleep, the San Antonio News-Express broke the story, and the interwebs went indiscriminantly crazy.

Tactless lefties rejoiced in the passing a strict constructionist icon who served 28 years on the high court, the last of Reagan's legacy. On the right, indignation over the response from the left quickly blended with the quick affirmation that absolutely no effort would be made to confirm any nominee who might be advanced by President Barack Obama. We political scientists discussed the nuanced nature of recess appointments and the cryptic qualities of Article II, section 3 to determine if the president could make and end run to make a recess appointment.

Our institutions are failing us. The Senate leadership has dismissed, out of hand, any presidential nominee as unacceptable. This, despite a closely divided court which is suffering from low evaluations from the public, and a Congress perceived as being incapable of governing in the general interest. On the left, the tasteless, shrill howls of glee over Scalia's demise only deadens moderate ears to the legitimate complaint that conservative lawmakers have abandoned their larger mission of governing.

And, Scalia's passing at 79 becomes, immediately, a defining debate point for the presidential campaign. Unfortunately, this campaign is lacking anyone of sufficient statesmanlike quality to articulate with any legitimacy either the importance of Scalia as a jurist, or the need for the constitutional order to act accordingly to fill his seat consistent with the needs of these times.

We are failing because there is no desire to place governing ahead of tactical politics. America functions, barely, without a legislature capable of governing. It defies the reconstitution of a court which will be shaped by the combined legitimacy of a Senate of one party, chosen by the people, and a president who has twice commanded the majority of the electorate and who retains relatively strong approval ratings for a seventh year in office.

It is no small wonder that a frustrated electorate looks to the unrealistic and disturbing alternatives of an authoritarian populist who does not understand the Framer's Constitution, or a theocrat who possessed of immense personal ambition, or a socialist who sells easy dreams that cannot be made law. They are offered no evidence of gravitas or governing with dignity in Washington.

I often disagreed with Antonin Scalia. But he was a significant jurist. His death deserves respect. And, his vacancy deserves to be addressed by the president and the Senate in order to provide them what is so desperately needed in American politics - a centrist jurist who respects the constitution and also understands its evolving nature.