UB experts discuss implications of Scalia’s death

Saturday’s unexpected death of Supreme Court Justice Antonin Scalia has raised numerous issues, the most controversial being whether President Obama should attempt to replace Scalia in an election year, and whether the Senate should consider the president’s choice.

Other emerging issues include important Supreme Court cases that may split 4-to-4 now that the court is down to eight members, as well as Scalia’s legacy.

Several UB faculty members talked with the UB Reporter about these issues.

James Campbell, UB Distinguished Professor of Political Science, believes there is no way a replacement for Scalia will be confirmed before the presidential election in November.

“Republicans have a majority of seats in the Senate and a majority is required to confirm a Supreme Court justice,” Campbell says. “They will not cooperate with a lame duck liberal Democratic president in an election year naming a liberal justice who will redirect the court from its current balance to one inclined to rubber stamp liberal policies.”

The controversy is detrimental to relations between political parties and to the American political process, Campbell says.

“This is a kabuki dance of political posturing,” he says. “President Obama sees an opportunity to win a confirmation battle and shift the court to the left, or renew charges that Republicans are obstructionists and opposed to whatever demographic group a rejected nominee belongs to.

“It is about politics, not fulfilling constitutional responsibilities.”

The inevitable Senate fight will make people even more cynical about politics, Campbell predicts.

“It further poisons the well for future political dealings,” he says. “It is throwing gasoline on the political polarization fires.”

James Gardner, interim dean of the UB Law School dean, is a former law student of Scalia’s.

While Scalia made many important contributions to the Supreme Court’s jurisprudence, one of his other legacies was raising the level of incivility, says Gardner.

“What started out as fierce intellectual independence and fearlessness degenerated, in his later years, into anger, stridency and closed-mindedness,” he says. “In his worst moments, Justice Scalia wrote not to persuade, but to mock and disparage.

“These writings have the unfortunate effect of legitimizing the use of uncivil language in judicial opinions, and it would be a shame if those who admire him for his virtues as a jurist mistakenly emulated this characteristic of his later work.”

Scalia evolved from an independent-minded intellect to an angry curmudgeon, Gardner says, and this raises questions about lifetime tenure for judges.

A limited term for appointed judges could help, he says.

“Loss of humility is an occupational hazard of judging,” Gardner says. “People who are treated constantly with the greatest deference on account of their office may eventually come to feel that deference is due to them as a person, for who they are and the opinions they hold.”

Scalia, who was Gardner’s contracts professor while Gardner was a law student at the University of Chicago, “was an entertaining professor and had a great sense of humor,” Gardner recalls. “He was quite a public speaker. He was funny and witty.”

With the court poised to be left shorthanded for possibly a year, it will not be able to function very well, he says.

In cases where there are 4-to-4 splits in voting, the lower court’s decision would be affirmed and the Supreme Court proceedings would be irrelevant.

“For those upcoming, high-profile cases, it is likely the Supreme Court will defer hearing the case until next term when they are at full strength,” Gardner says. “That means rulings on important matters will be delayed for another year at least.”

Lucinda Finley, the Frank G. Raichle Professor of Trial and Appellate Advocacy in the law school, has argued two cases before Scalia.

Finley says there are some major, hotly contested cases that were likely to split 5-4. In the absence of Scalia, some of those cases could be resolved in a 4-to-4 split, and then the decision of the lower court would stand, she says.

One of those cases that was argued recently was Fisher v. University of Texas, which deals with affirmative action and whether race could ever be a factor at all in university admissions. Scalia’s comments during the case signaled that he was highly likely to vote against considering race as a factor in university admissions, Finley says.

Upcoming high-profile cases, such as the Texas case regarding abortion clinics, likely will be deferred until the court is at full-strength. This means ruling on important matters will be delayed for yet another year, she says.

“I think this further roils presidential electoral politics,” Finley says. “It will remind people of the Supreme Court and the power the court has to make decisions. The Supreme Court will now become a major issue in the upcoming presidential election. Before nobody was talking about the Supreme Court in the election; now it clearly will become a major campaign issue.”