Replacing Justice Scalia

Replacing Justice Scalia has become a political football. With the impending Presidential election only nine months away, some politicians are saying that our lame-duck President should defer to the next President to nominate the replacement. Senate Majority Leader Mitch McConnell (R-Ky.) pledged that there will be “no action” on any Supreme Court nomination before the election in November.

I believe this is wrong-headed. The Supreme Court should not be ham-strung by the potential for four-to-four decisions. President Obama should nominate someone and the Senate should consider each nominee.

Another issue crossed my desk. I read an article by Royal Furgeson, the Founding dean, University of North Texas – Dallas College of Law, entitled "Diversity key in finding Scalia's replacement on Supreme Court" on the Texas Tribune website. He pointed out that all of the current Supreme Court justices are either from the New York area or from California and that all of them graduated from either Yale or Harvard Law Schools. Seven of the justices advanced from the Federal appeals courts and one is an academic. He continued with his point that we need more diversity on the Supreme Court:

That was not always the case: The Supreme Court that decided Brown v. Board of Education consisted of, among others, a governor, an academic, a senator, an attorney general and a regulator, none of whom had had prior judicial experience. Certainly, it could not hurt to bring broader experience to the court, and it just might help.

As the president considers bringing more balanced experience to the court, he might focus on legislative experience — after all, issues of statutory interpretation make up a significant part of the court's docket.

I believe that he is right. Americans do not just live on the East and West Coasts. Many of us live in "fly-over" country. Most of our "high-powered" politicians also are from the Coasts. These people have little understanding of the problems faced in fly-over country and they often write laws and create Federal programs that just do not work out here.

For example, they talk of gun control because gangs are shooting people while we need guns for rattlesnake and predator control. The effect of such laws is that the gangs, who do not care about laws, are still shooting people while out here we cannot stop the predators from killing our livestock.

I urge our Presidents to consider jurists from law schools across the country, especially those who have served on state courts, and not just those from the Yale and Harvard "old boys" clubs.

Supreme Court Justice Antonin Scalia (1936-2016) RIP

Early this morning, Supreme Court Justice Antonin Scalia died at the age of 79. While I may not have agreed with many of his decisions, he was always an honest broker and a strong believer in the original meaning of the words of the Constitution of the United States.

He also did something rare and unusual — he made the Supreme Court approachable by the ordinary citizen. When I was in high school, Supreme Court arguments were seldom mentioned in the newspapers. In oral arguments, the two opposing councils merely read their statements and maybe a question or two would then be asked. Since President Ronald Reagen appointed Justice Scalia to the bench, the lawyers would barely get started before Justice Scalia or one of his colleagues would fire off a question to be answered. This made following the action at the Supreme Court actually newsworthy on a regular basis — a much needed improvement.

Justice Scalia, may you now and forever rest in peace. Your watch is done; your victory won. May the Lord take you into his house to sit at his right hand.

Now, it falls on our current President, President Obama, to nominate a successor to Justice Scalia. Because he is a "lame duck," the current crop of presidential contenders, on both sides of the aisle, are urging him to wait until after the next President is elected and inaugurated.

I strongly disagree — Justice Scalia died on his watch, therefore President Obama should nominate his successor. In the current climate in the United States Senate, I do not believe, however, that any jurist nominated by President Obama or even his successor stand much of a chance of being confirmed by two-thirds of the Senate. It is his job to try, however.

As lawyer-turned-journalist Greta Van Susteren wrote today:

The U.S. Constitution, Article 2, Section 2, Clause 2 says presidents nominate justices to the Supreme Court. It says the president SHALL and does not say MAY. This means it is not an option.(Huffington Post)