THE EMPTY CHAIR.
In the inner sanctuary of the Supreme Court of the United States (SCOTUS), there is an empty chair. The man or woman who will soon occupy this chair will wield the power to bring the Court back into balance after the untimely death of Justice Antonin Scalia. Scalia occupied this chair since 1986 when he was appointed to the Court by President Ronald Reagan. He was unanimously confirmed by the Senate.
With his death, the gregarious Italian, known for his intelligence, wit, protection of individual rights against unreasonable searches and seizures, and many other things, created a void in the ideologically right wing of the court. His death also temporarily tilted the Court to the left for the first time since the 1970’s.
A new justice, nominated by a new president, will soon take his or her place as the 9th SCOTUS justice. To illustrate the importance of this 9th justice, we can look at the current makeup of the eight-member Court. In general, to the left you have Sotomayor, Kagan, Breyer, and Ginsburg. To the right, you have Chief Justice Roberts, Thomas, and Alito (four liberals and three conservatives). In the middle, we find the most powerful member of the Court; Anthony Kennedy. Kennedy, the “moderate” who often casts the deciding vote is known as the “swing vote.”
The balance of SCOTUS has been delicate for years. Had Clinton been elected; SCOTUS would have shifted further to the left with the four (and a fifth nominated by Clinton) solidly in control of the judiciary with many years of left leaning judicial opinions.
This 9th justice will be conservative enough to bring that delicate balance back to the Court by returning to that four liberal/four conservative and one swing voter model.
Well, what is the big deal with people in black robes working in Washington, D.C.? Today, SCOTUS is arguably the most powerful of the three branches of government.
Why is SCOTUS more powerful than the other two?
1. Justices serve until they retire, die, or are impeached. Some justices will serve over 2 generations. During their tenure, they will strike down and uphold laws that materially affect us and the culture of our nation.
2. Presidents, with the exception of FDR, only have a maximum of eight years to improve, harm, or otherwise affect our country. This is not nearly long enough to make a lasting impact on our nation.
3. The makeup of Congress changes every two years. Most representatives and senators are relatively unknown nationally and many have short congressional careers. Few people remember who the Speaker of the House was 15 years ago or who the Senate majority leader was even five years ago. Power shifts occur frequently in both chambers.
4. Most importantly, regardless of the work by Congress, bills presented to the president, and all the publicity surrounding what Congress and the president are doing and going to do, SCOTUS has the last word. SCOTUS deems what the law is and what it is not. Period.
President Elect Trump is already gathering names so that he can select a nominee to present to the Senate for confirmation. But, it may not be easy.
Republicans hold a very slim majority in the Senate. Any nominee would be far from filibuster proof and may need conservative Democrats to get confirmed.
I would like to see a new conservative justice who views his or her job like Chief Justice Roberts. Roberts once said that judges are like umpires. They should call balls and strikes without favoring one side or the other based on personal characteristics. The race or gender of the new justice should also not matter. What matters the most, to me, is that the new justice values the entire Constitution rather than favoring some amendments over others, defers to the plain text in the document, and does not create rights where they do not exist in the Constitution.
No one could ever “replace” Antonin Scalia. But, someone will soon become the 9th.
Who will occupy that empty chair?