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First Thoughts on the death of Antonin Scalia

Portrait of Antonin Scalia, Associate Justice, U.S. Supreme Court

News of the death of Justice Scalia, a Reagan appointee, has broken in upon our endless political campaign, and will surely give the candidates something new to talk about in the weeks to come.

That was very first thought on hearing this news. I apologize to those to whom it seems crude. I have no personal knowledge of Scalia, but am perfectly happy to believe that he was a wonderful man and to commiserate with his family and friends. I disagree with his jurisprudential ideas in a number of respects. But my first thought was and is neither personal nor jurisprudential; it was and is plainly political. 

Further, I'm thinking just now of another campaign year, 1968. In June of that year, Chief Justice Earl Warren announced his retirement. He did this precisely because he thought it would give President Johnson plenty of time to choose a replacement for him, and the Senate time to act upon it, thus preserving his own considerable legacy. 

Johnson replied by nominating Abe Fortas, one of the Associate Justices, to move on up to the Chief Justiceship, and nominating one of his Texas cronies, Homer Thornberry, to take Fortas' seat. This was a mistake on a couple of levels. Controversies arose over Fortas' behavior on the bench, which was in some respects irresponsible, and those controversies allowed the Republicans in the Senate to delay any action on either of these appointments. The upshot was that when a new President came into office in 1969 there was still a vacancy at the Chieftaincy, and there would soon be a second -- Fortas would be forced to resign. 

That was June 1968. This is February, four months earlier in the election cycle. Still, Obama will surely want to make an appointment with some rapidity, and the Republicans will surely want to keep this seat open for as long as they have any hopes about November. 

We'll see how it all plays out.  


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