Monday, February 15, 2016

GateHouse: Scalia's death will impact law and politics

Matthew T. Mangino
GateHouse Media
February 15, 2016

U.S. Supreme Court Justice Antonin Scalia, the leading conservative on the court, has died at the age of 79.
Scalia’s body was barely on its way home from the west Texas ranch where he died in his sleep of an apparent heart attack when speculation began to swirl about his replacement and who would make the appointment.
Scalia’s death leaves the court split with four conservatives and four liberals. The vacancy will bring into focus the importance of the 2016 presidential election.
The first question, should President Barack Obama fill the vacancy in an election year? Obama said the evening of Scalia’s death that he plans to nominate a replacement. Will he get that nominee confirmed? Senate Majority Leader Mitch McConnell said the nomination should wait until the next president comes into office.
The battle lines have been drawn, and for good reason. The next justice could tilt the balance of power on the world’s most influential court.
Regardless of the nominee, there is little chance that next member of the Supreme Court will be as bombastic, and in your face as Scalia. He never shied away from calling out his colleagues or turning a phrase that could send a shiver down the spines of lawyers and laymen alike.
In the area of criminal law he accepted the fact that the justice system is not perfect, and innocent people will be convicted. “Like other human institutions, courts and juries are not perfect,” he wrote in a 2006. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly.”
In a 2009 dissent of a high profile death penalty case, Scalia wrote, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Scalia was right, but the statement was profoundly callous and cold.
Scalia’s absence from the court will have an immediate impact. On immigration, a Texas federal judge put an unprecedented nationwide hold on President Obama’s executive order that would temporarily enable about five million undocumented immigrants to remain in the county.
A deadlocked Supreme Court would let the Texas order stand.
On abortion, also a case out of Texas, the loss of Scalia means the chance the Supreme Court would uphold the Texas law outright is unlikely. However, a split 4-4 will uphold the Texas law and states within the Fifth Circuit — Louisiana, Texas and Mississippi — will gain broad discretion to restrict abortion until the matter once again reaches the Court.
On the other hand, Scalia’s death may be a gift for labor unions. It appeared that the Court was likely to rule in favor of a California effort to defund public sector unions. With only four votes, a tie would affirm the decision of the lower court which was a victory for organized labor.
If the United States Senate refuses to take action on an Obama nominee there would be an unprecedented void on the court. The delay in the confirmation process could take more than a year. In the modern era, the longest Supreme Court vacancy was 363 days after Justice Abe Fortas resigned in 1969.
In the last century, there have only been a handful of justices approved during an election year. The last nominee to be confirmed in an election year was Justice Anthony Kennedy in 1988. Kennedy was approved after an epic battle that resulted in the Senate rejecting President Ronald Reagan’s first nominee, conservative Robert Bork.
The loss of Scalia on the court, and choosing his replacement, may have more impact on the 2016 election than any other issue. Senator Ted Cruz, a Republican candidate for president, said on NBC’s Meet the Press, “We ought to make the 2016 election a referendum on the Supreme Court.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

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