Thursday 22 March 2018

US Supreme Court Justice Scalia: The man I knew

Supreme Court Justice Antonin Scalia .
Supreme Court Justice Antonin Scalia .

Hugh O’Flaherty

I had been friends with US Supreme Court Justice Antonin Scalia for over 20 years and heard of his sudden and untimely death with great sorrow. He had been a key member of the US Supreme Court for over three decades. He was regarded as a leading conservative member; essentially, he believed the US constitution should be interpreted in a literal way: more or less as the founders had intended it.

In contrast, our courts interpret our Constitution by reading it in the present tense and that is how the "liberals" on the US court regard their role.

Justice Scalia enjoyed his visits to Ireland very much. And they were frequent. He enjoyed engaging with students at home and abroad very much. Just a few weeks ago, I was in touch with him to arrange for some young people to meet with him on a visit to the court. He was most accommodating. I recall a time we had the Justice and his wife, Maureen, to the house. Former Fianna Fáil minister Michael O'Kennedy and his wife, Breda, were also there. Michael speaks fluent Italian and so the two had a great time conversing not only in Italian but in different dialects of that language.

That time, too, the Justice recalled being stopped for speeding in the west of Ireland. He said that, in his defence, he had not realised our speed limits were expressed in kilometres, not miles!

US President Barack Obama has paid a generous tribute to Justice Scalia as being one of America's outstanding judges. This is despite the fact that some of his judgments did not favour the president's cause, especially in regard to his healthcare proposals.

Now a question surrounds who should succeed Justice Scalia. As Mr Obama and other commentators have pointed out, the constitutional provisions are clear: it is for the president to choose the person who should serve on the court, subject to the Senate's confirmation. But the Senate is controlled by the Republicans and that party's initial position was that the president should not nominate anyone; the decision should be left to his successor. This would mean the court would be reduced to eight members and might have split 4:4 on decisions, which would mean the decision of the lower court would stand and the Supreme Court verdict would be useless. It would be odd, too, to say a president with nearly a year to go should not carry out his clear duty.

Now it appears that the initial stance of the Republicans has softened. Some senators suggest that they should wait and see who the president nominates and then decide to have a hearing and confirm or deny his choice.

The US constitution does not specify how many justices there should be. There were 10 members at one time but the number has remained at nine since 1869.

The court has been faulted for having a conservative and liberal wing. Not so many cases are decided along those lines but some very important ones have been. The fear among Republicans is that Mr Obama will appoint a liberal and thereby tilt the balance, and this imbalance, as they would see it, could endure for a long time. Might the time be ripe to break the deadlock by appointing additional judges to the court: men or women who are manifestly of neither wing? The last time there was a move to increase the numbers on the court was in President Franklin Roosevelt's New Deal days.

The president pulled back from appointing additional justices that would have supported his proposal, just as the court pulled back from striking down the laws he believed were required. I think it is widely agreed in legal circles in any event that the court should not be seen as being governed by political criteria; it is always best to leave politics to the politicians.

So is now the time to appoint more than one successor to Justice Scalia?

Irish Independent

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