February 13, 2016

One decade since Justice Scalia's death.

Today is the ten year anniversary of Justice Scalia's passing. At the time, I could not have fathomed what the ensuing ten years would bring. To commemorate that day, I quote at length from my 2016 book, Unraveled. There are some good nuggets here, a few that I had forgotten!

The news of Scalia's passing broke on Saturday, February 13, 2016, at about 4:30 PM. Within minutes, through what Adam Smith would call the invisible hand , a Republican strategy spontaneously organized on social media: no confirmation until after the election, regardless of who the nominee is. At 4:56 PM, Conn Carroll, a spokesman for Senator Mike Lee (R- UT), tweeted, "What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia." Conservative pundits quickly reinforced the message. Sean Davis, who writes at The Federalist , posted at 4:52, "If Scalia has actually passed away, the Senate must refuse to confirm any justices in 2016 and leave the nomination to the next president."

One hour later, before consulting his caucus, Majority Leader McConnell released a statement: "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President." Senator John Cornyn (R- TX) warned that whoever the President nominated had no chance of confirmation, and would "bear some resemblance to a piñata."

Almost immediately all eyes turned to an octogenarian from Iowa. Chuck Grassley, Chairman of the Senate Judiciary Committee, held almost unfettered discretion over whether Obama's nominee would even be considered by the Senate. The New York Times reported that Grassley "arguably" has "more power than any other individual senator in deciding if the process will move forward."

Before a nominee was even named, pressure mounted on the folksy Iowan to hold a hearing. The Des Moines Register called on Grassley to proceed with Obama's nominee. "This could have been a 'profile in courage' moment for Senator Grassley. This was an opportunity for our senior senator to be less of a politician and more of a statesman. It was a chance for him to be principled rather than partisan." In the immediate aftermath of Scalia's passing, Grassley was somewhat noncommittal. He told Radio Iowa , "I would wait until the nominee is made before I would make any decisions."

He called for patience. "One step at a time." The Times observed that early on the Iowan "has given off conflicting signals about his intentions." Republicans defended their opposition to a hearing, citing Democratic filibusters of President Bush's nominees a decade earlier. Democrats countered that they filibustered lower- court nominees, who were at least afforded a hearing, even if they did not receive a vote. Further, the Supreme Court, they argued, was different. Denying a nominee a hearing was the next level up from blocking a nominee's floor vote. Michael Barone's observation is still evergreen: "In politics . . . all procedural arguments are insincere."

In 2010, the Chief Justice lamented the politicization of the confirmation process. "Each political party has found it easy to turn on a dime," Roberts observed, "from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes." Senator Grassley charged that Roberts had it "exactly backwards." The "confirmation process doesn't make the Justices appear political," the Iowan said. Rather, "the confirmation process has gotten political precisely because the court has drifted from the constitutional text, and rendered decisions based instead on policy preferences." Grassley specifically targeted Roberts's Obamacare decisions. "In fact, many of my constituents believe, with all due respect, that the Chief Justice is part of this problem. They believe that a number of his votes have reflected political considerations, not legal ones." To the extent that the Chief's ACA opinions were designed to keep the Court out of the political arena, the plan backfired in ways that were impossible to anticipate.

After some vacillation, the Republican leadership solidified its position. McConnell and Grassley coauthored an editorial in the Washington Post expressing their shared strategy. "Given that we are in the midst of the presidential election process," the Kentuckian and Iowan wrote, "we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court." As for a question of duty, they wrote that the "Constitution grants the Senate the power to provide, or as the case may be, withhold its consent." The Senate leadership held firm and refused to schedule a hearing for Garland. Many declined to even meet with the nominee.

At the University of Chicago Law School, where Obama had lectured on constitutional law, President Obama ridiculed the Republican strategy. The GOP "simply will not consider the nomination itself," he said, and they are "going to shut down the process," leaving a short- handed Court "for at least two" terms. "That is unprecedented." The President, slipping back into professor mode, warned the law students in attendance that if the "process of appointing judges is so broken . . . then we are going to see the kinds of sharp, partisan polarization that has come to characterize our electoral politics seeping entirely into the judicial system." Obama predicted that "the courts will be just an extension of our legislatures and our elections and our politics," and "that erodes the institutional integrity of the judicial branch."

With the Senate Republicans holding firm that the nomination would be filled by the next president, the stakes of the 2016 election grew even higher. And the candidates did not have much time to prepare. Justice Scalia's passing was announced barely four hours before the GOP debate in South Carolina. In politics, virtually every important decision is scripted well in advance after thorough consideration. On February 13, 2016, the candidates had to improvise.

At the time, I was advising Senator Ted Cruz's campaign on legal issues. Within minutes of the announcement, Cruz's policy team kicked into action with a series of rapid-fire e-mails. First, the campaign decided to follow the nascent strategy of opposing a hearing, whoever the nominee may be. At 5:27 PM, @TedCruz tweeted, "Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement." Moments later, I texted a line for Cruz to use during the debate: "What Reagan was to the Presidency, Scalia was to the Supreme Court." Cruz did not say it that night, but it became part of his stump speech, and he used it during several interviews.

The second major decision was whether Cruz should announce potential candidates to replace Scalia. One of his advisers suggested Mike Luttig, a former judge on the Fourth Circuit Court of Appeals. Luttig, who served as a law clerk for Scalia and had hired Cruz as a law clerk, was a finalist to replace Chief Justice Rehnquist in 2005. However, George W. Bush chose John Roberts instead. Ultimately, the Cruz campaign decided not to name a nominee, as it was too soon, and there was not sufficient time to vet nominees.

Donald Trump, as usual, would take a different tack. The first question of the debate went to the New York real estate magnate. "You've said that the President shouldn't nominate anyone in the rest of his term to replace Justice Scalia," moderator John Dickerson said. "If you were President, and had a chance with 11 months left to go in your term, wouldn't it be an abdication to conservatives in particular, not to name a conservative justice with the rest of your term?" Without hesitation, Trump answered, "If I were President now I would certainly want to try and nominate a justice." But he hoped that "Mitch [McConnell], and the entire group, [are] going to be able to do something about" President Obama's nominee.

Then Trump dropped the bombshell of the evening. If he was elected, "we could have a Diane Sykes, or you could have a Bill Pryor, we have some fantastic people." Within seconds, my phone lit up from the Cruz campaign. "What do we have on these two? Sykes and Pryor? Are they solid?" Sykes was a Bush appointee to the Seventh Circuit in Wisconsin. Pryor, a Bush appointee to the Eleventh Circuit Court in Alabama, was confirmed after the Gang of Fourteen's compromise broke up the Democratic filibuster.

Both had ruled against Obamacare's contraceptive mandate. Sykes found that the mandate violated the free exercise of a religious for-profit corporation, and Pryor ruled the accommodation to the mandate infringed the religious liberty of a nonprofit. I texted back that they were both solid. "OK just had to check – DT got good advice then." The move was shrewd. Trump became the first presidential candidate to name the individuals he might appoint to the Supreme Court, and shifted the entire tenor of the debate after Scalia's passing

We miss you Justice Scalia.