Fair Courts E-lert: Justice Scalia Dies at 79; Vacancy Battle Politicizes Supreme Court

February 19, 2016

THE SUPREME COURT

Justice Antonin Scalia, “Champion of Originalism,” Dies at 79

Justice Antonin Scalia, the longest-serving member of the current U.S. Supreme Court, died Saturday at the age of 79. In The New York Times, Adam Liptak eulogizes Justice Scalia as “a leader of a conservative intellectual renaissance in his three decades on the Supreme Court” and as “a champion of originalism.” Writing for The Brennan Center, Andrew Cohen says it was the late Justice’s contradictions that “[explain] why he was a transcendent Supreme Court justice, a man whose many philosophies will be cited, in court and beyond, for centuries to come.” Cohen explores the Justice’s “dissonance,” and how he used his intelligence “to mesh his partisan ideology with a constitutional doctrine at precisely the right time in history to make both stick.” Touching on his “best” and his “worst,” Cohen describes Justice Scalia “as the anchor and avatar of one of the most conservative courts in American history.”

Vacancy Battle Further Politicizes Supreme Court

“Justice Antonin Scalia’s unexpected death – and Senate Republicans’ refusal to confirm a successor while President Barack Obama is in office – threatens to ignite a year-long battle over the court’s future,” writes Greg Stohr for Bloomberg Politics. “The controversy risks exacerbating what Chief Justice John Roberts cites as a prime concern: the public’s tendency to view members of the court as partisans, rather than as impartial judges,” Stohr adds. “When you have a sharply political, divisive hearing process,” he quotes the Chief Justice as saying earlier this month, “it increases the danger that whoever comes out of it will be viewed in [partisan] terms.” Barbara Perry, a scholar at the University of Virginia, agreed, telling Stohr: “The court serves the nation most effectively when it remains above the fray.” And yet staying above the fray is a challenge, according to Brennan Center President Michael Waldman, who writes in the New York Daily News that “nominee or not, [the vacancy] makes the Supreme Court and its direction a central flashpoint for the Presidential election.”

STATE JUDICIAL SELECTION

Oklahoma Judicial Elections Bill Sparks Bar Opposition

A bill that would change the way Oklahoma’s appellate judges are selected has advanced through committee, arousing strong opposition from the state bar association, reports Abby Broyles for NBC in Oklahoma City. Currently, Broyles explains, a nominating commission of “six lawyers and nine citizens vet each appellate judge then give a list to the governor for the ultimate decision.” The bill, authored by Rep. Kevin Calvey, would make all appellate court seats subject to nonpartisan elections beginning in 2018. “Calvey is upset with recent state supreme court decisions, like the one that led to the Ten Commandments monument being removed from capitol grounds,” says Broyles. “I believe all government officials ought to be accountable to the people, whether directly or indirectly, even those that wear black robes,” Clavey told Broyles. Oklahoma Bar Association President Garvin Isaacs explained that the organization “is for preserving the judicial nominating commission” because of its role in taking “scandal out” of the appellate courts. If the bill passes the legislature, it will go to the public for a final vote.

Former AK Chief Justice: Proposed Commission Changes Threaten Judicial Independence

A bill to alter the composition of the Alaska council responsible for nominating judicial candidates “is a sure road to destruction of judicial independence,” warned former Alaska Chief Justice Bud Carpeneti at a recent luncheon for business leaders. The Alaska Judicial Council currently consists of three attorney members appointed by the state bar, three non-attorney members appointed by the governor, and the chief justice as the council chair. According to Sam DeGrave for the Juneau Empire, “the resolution proposes adding three non-attorney positions—in addition to the three that already exist—all of which would be filled by governor appointment,” as well as subjecting all commissioner appointments to legislative approval. Calling Alaska’s current judicial system “corruption-free” and “the envy of the nation,” former Justice Carpeneti said the bill threatens to politicize judicial appointments and harm businesses: “Businesses depend on a stable judiciary of the highest quality, not one weakened by inappropriate political considerations.”