Justice Antonin Scalia leaves a polarizing legacy that Congress must not make worse

The Editorial Board

U.S. Supreme Court Justice Antonin Scalia died this weekend, leaving a polarizing legacy.
U.S. Supreme Court Justice Antonin Scalia died this weekend, leaving a polarizing legacy. The Associated Press

Antonin Scalia packed three decades of partisanship and controversy into his career as a U.S. Supreme Court justice, setting patterns that his death at age 79 this weekend seem likely to intensify.

Scalia was a hugely significant justice who brashly championed intellectual conservatism and who promoted the unfortunate concept of “originalism,” the notion that U.S. society today and for all time should be constrained by the original wording of the U.S. Constitution.

In a twist that speaks bitterly to the polarization that tears at all branches of our government, key Republicans who call themselves originalists were quick to depart from basic Constitutional tenets in the wake of Scalia’s death.

With a presidential election in full swing and President Obama considering his legacy, Justice Antonin Scalia's untimely death couldn't have come at a more dramatic time in politics. Will the president be able to get a nomination through the Senat

The document plainly states that the president of the United States shall nominate justices for U.S. Supreme Court seats, by and with the advice and consent of the Senate.

Nowhere does it say that presidents should not move to fill vacancies in their final year in office. But that is what Republicans such as U.S. Senator and presidential candidate Ted Cruz and Senate Majority Leader Mitch McConnell are proposing.

President Barack Obama rightly says he will get to work immediately on appointing a nominee. It is his job. Republican refusal to hold confirmation hearings would render our government more broken than it already is and will surely clarify for voters the significant consequences of the presidential campaign.

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Nominated by President Ronald Reagan and confirmed in 1986, Scalia established himself as an outsized presence on the court. He was outspoken in both oral and written arguments and openly disparaging of liberals and their thinking.

His blustery personality and insistence that the Constitution should be interpreted just as he decreed the founders intended made him a rock star to generations of young conservatives.

But it is possible to leave a large impact and still be wrong about many things, and that is Scalia’s legacy.

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He was in the thick of the shameful and decidedly non-originalist decision to halt a recount of ballots cast in Florida in the 2000 election, thus handing the presidency to George W. Bush.

Scalia voted with the majority of conservative judges in the ruinous Citizens United decision, allowing monied interests to co-opt our political system.

He was consistently on the wrong side of history on matters of affirmative action and equality for same-sex couples.

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He didn’t agree with the Roe v. Wade ruling and was a reliable vote to limit a woman’s right to terminate a pregnancy.

Like many of the court’s justices, Scalia brought an inspirational biography to the bench. He was born in 1936 in Trenton, N.J., to an Italian immigrant father and a first-generation Italian-American mother.

The greatness of America presented Scalia with the opportunity to stamp his fierce intellect and conservative principles onto some of society’s most contentious issues. That same greatness gives others the right to vehemently disagree with his thinking.

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But America’s greatness also relies upon elected leaders honoring their oaths to uphold the nation’s laws and Constitution. Republicans don’t get to change the rules of Supreme Court succession in order to keep Obama from filling a vacancy.

Go down that road and conservatives will rip a hole in the fabric of the nation they say they revere.

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