In Lieu Of Flowers, Republicans Could Honor Justice Scalia By Replacing Him

The late judge knew very well the consequences of leaving the Supreme Court one member short.

WASHINGTON -- Americans paid their last respects to the late Justice Antonin Scalia on Friday -- by visiting the U.S. Supreme Court by the thousands as his body lay in repose.

The U.S. Senate wanted to mark the solemn occasion, too, and sent a floral arrangement in honor of the justice's memory.

The wreath occupied a prime spot at the public event:

A portrait of the late Justice Antonin Scalia as he lay in repose Friday at the Great Hall of the U.S. Supreme Court.
A portrait of the late Justice Antonin Scalia as he lay in repose Friday at the Great Hall of the U.S. Supreme Court.

The Senate is embroiled in an escalating political battle with President Barack Obama over Scalia's replacement. Its main argument, as Senate leaders Mitch McConnell and Chuck Grassley outlined in a joint op-ed in The Washington Post, is that the president shouldn't "rob" voters of a nominee of their choice.

Quite likely, Scalia himself wouldn't have any of this. Not only because it doesn't seem to square with his originalist view of the Constitution -- nowhere in the text of the Appointments Clause is there anything about voters being a part of the process.

But also because the political gamesmanship twists the appointment process to the detriment of the Supreme Court itself. As The Huffington Post's Jen Bendery wrote this week, the entire federal judiciary is now hamstrung because of the obstructionism of Senate leadership.

That's the real damage here. The constitutional posturing by McConnell and Grassley -- and, to an extent, the president himself -- takes a backseat to the prospect of real-life paralysis that the Supreme Court now faces.

Scalia appreciated the judicial branch's insulation from the political ones -- which may explain his 20-year absence from the State of the Union address, which he once called "a childish spectacle."

A few years ago, Scalia said as much when he explained how he viewed his role vis-a-vis that of Washington lawmakers.

"I have a deal with the Congress. I leave them alone. They leave me alone," he said at a Tufts University appearance in 2013.

The issue there was the looming government shutdown. But Scalia's comment underscored how he valued judicial independence and the separation of powers -- constitutional principles that, for the most part, have allowed the Supreme Court to continue hearing cases and churning out decisions for years. It's far more productive and functional than Congress has been in a very long time.

But with only eight justices, that productivity is now in jeopardy. An understaffed Supreme Court means the future of constitutional law is at a standstill, and some of the nation's most contested, unresolved legal matters -- including the fate of affirmative action, abortion and immigration -- are in limbo.

"The Court proceeds with eight Justices," Scalia once wrote, "raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case."

Scalia was addressing the problem of Supreme Court recusals, but the principle underlying his words is the same: The court cannot operate with eight justices. And the state of the law for the entire country -- for judicial precedent, for finality, for guidance that other courts must follow -- suffers as a result.

So the flowers were a nice gesture of the Senate. But honoring Scalia's legacy will take far more than that. The stability of the Supreme Court and the rule of law depend on it.

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