U.S. Supreme Court Justice Antonin Scalia testifies before the Senate Judiciary Committee on October 5, 2011.

U.S. Supreme Court Justice Antonin Scalia testifies before the Senate Judiciary Committee on October 5, 2011.

Justice Antonin Scalia was the leading conservative voice on the U.S. Supreme Court. His death over the weekend from natural causes ended a decades-long judicial career marked by lively opinions and adherence to a textural interpretation of the Constitution. Almost immediately after Scalia’s passing was announced, a political battle began. President Obama said he would nominate someone to succeed Scalia. And Republicans vowed to block any successor the president named. With cases this term concerning affirmative action, abortion and immigration, the stakes are high. Diane and her guests discuss the life and legacy of Justice Scalia – and the fight ahead over the makeup of the Court.


  • Jeffrey Rosen President and CEO, The National Constitution Center; author of the forthcoming book, "Louis D. Brandeis: American Prophet" (June 2016)
  • Dahlia Lithwick Reporter covering the courts and law, Slate.com; host of the podcast Amicus
  • Stuart Taylor Author and journalist; nonresident senior fellow, The Brookings Institution; co-author of "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It"
  • Ron Elving Senior Washington editor, NPR News


  • 10:06:32

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The death of Supreme Court Justice Antonin Scalia set in motion a contentious election year fight over his successor. Republicans and Democrats have already drawn sharp battle lines. President Obama says he'll put forward a nomination. Republicans quickly vowed to block any nominee, saying the decision should be up to the next president. Rulings on abortion, affirmative action and immigration are among those at stake.

  • 10:07:29

    MS. DIANE REHMHere to talk about Scalia's legacy and the future of the Supreme Court, Jeffrey Rosen of the National Constitution Center, Dahlia Lithwick of Slate.com, Stuart Taylor of the Brookings Institution and Ron Elving of NPR. I do invite you to be part of the program. Give us a call with your thoughts, your opinions. Call us on 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. And thank you all for joining us on this snowy Washington morning.

  • 10:08:15

    MR. RON ELVINGGood morning, Diane.

  • 10:08:17

    MS. DAHLIA LITHWICKThank you for having us.

  • 10:08:18

    MR. JEFFREY ROSENWonderful to be here.

  • 10:08:19

    MR. STUART TAYLORNice to be here.

  • 10:08:20

    REHMStuart Taylor, how will the late Justice Scalia be regarded by future generations?

  • 10:08:33

    TAYLORI think very favorably. I mean, he's certainly gotten favorable reviews from the president of the opposite party on down. And his eloquence, his passion, his writing ability, his sense of humor and, you know, his principles -- he has principles. A lot of people disagree with him, but he sticks to them, original meaning of the Constitution, what the text of the statute says, you know. All of those, I think, make him stand up as a man of principle and very extraordinary ability.

  • 10:09:11

    TAYLORI'd say his flaw is that he really said nasty things to colleagues on the bench or in his opinions sometimes, but I think people seem to forgive him that and especially his very close friend, the very liberal Justice Ruth Bader Ginsberg forgives him for that and says he makes me laugh.

  • 10:09:29

    REHMJeffrey Rosen, how do you see it?

  • 10:09:32

    ROSENI think he will be remember as one of the most influential justices of the 20th century. Think of how few justices have really transformed the terms of constitutional debate the way Scalia did. Louis Brandeis, my hero, did that. William Brennan, perhaps. But what Scalia did is to force liberals, as well as conservatives, to make arguments about constitutional text and history. So even when, as Stuart said, liberals argued that Scalia betrayed his principles, at least he was the one who was establishing the principles that were being betrayed.

  • 10:10:06

    ROSENI have to say, I was in law school in the 1990s and we were just on fire by the prospect that text and history might lead to progressive as well as conservative results. He inspired a generation or more of liberal and conservative students, lovers of the Constitution to really make arguments about constitutionalism. There was a great op-ed this morning saying he made constitutional law sexy. But really what he did is put ideas at the center of the debate and remind us that to be a transformative justice, it's not enough to be a careful craftsman or an academic.

  • 10:10:41

    ROSENYou have to be a visionary and you have to have passion. And he had so much passion for his constitutional vision. He defended it so vigorously and with such zest that he required people to respond to him even when they disagreed with him. I love teaching his opinions because the prose just was so much fun. I mean, the phrases come cascading out. He said, of the gay rights decision, the court has mistaken a Kulturkampf for a fit of spite. I didn't know what a Kulturkampf was. It was a battle between Bismarck and the Roman Catholic Church.

  • 10:11:13

    ROSENBut he always forced you to go to the dictionary and learn something. Or the court has converted -- he called the Mirada decision the very Cheops' pyramid of judicial arrogance. Again, I had to learn how to pronounce King Cheops, if I've got it right. But the man was just a towing figure, love him or no, you had to respond to him and he transformed the debate.

  • 10:11:34


  • 10:11:34

    LITHWICKI think this is a very, very complicated conversation, Diane, because I think we have to separate the fact that if you were gay in America, if you were a woman in America, if you are poor, if you are a death penalty -- a death row inmate who is hoping that someone is going to have some compassion for you, this is not a day where you want to hear, you know, Justice Scalia was a towering giant because there are a lot of people who would say, and I've been covering him for 15 years, and have said, this is a man who didn't find a space in his heart for everybody.

  • 10:12:08

    LITHWICKThis is a man who sometimes used doctrine to obfuscate what was, in some ways, the fundamental foundational role of justice in this country, which is to make things fair and make things right. And so it's a tricky conversation because on the one hand, as a craftsman, I couldn't agree more with Jeff and with Stuart. He changed the terms of the game. He made textualism and originalism and a rigorous way of thinking about the Constitution something that everybody does now on the right and the left.

  • 10:12:37

    LITHWICKThe 2008 Heller decision, the guns decision, the liberals used Scalia's toolkit, used originalism and textualism. Everybody agrees he changed the way we talk about doctrine. But I think we also have to say in this country, it is fair to say that women are impoverished by the Scalia doctrine. Women, minorities, death row inmates, workers in this country did not find a hero in Justice Antonin Scalia.

  • 10:13:04

    REHMRon Elving.

  • 10:13:05

    ELVINGI think Jeffrey is right. He was certainly one of the monumental figures of the century. I'm not sure, however, that Justice Scalia himself would've wanted it to be the 20th century. He might have felt more comfortable in an earlier century. And I don't mean exactly preceding 1800, 1700s, but perhaps back into more of a medieval period when the authority of the Catholic Church was unquestioned, when the authority of the secular power was in greater harmony perhaps with that authority and also was unquestioned to a large degree.

  • 10:13:39

    ELVINGHe was a man who respected authority. He looked for authority in documents, in the United States Constitution. He looked for authority in the Bible and he believed in the special place of those texts, sacred in some cases, perhaps even extending a little bit to the U.S. Constitution. He had reverence for it, let's put it that way. Whether he considered it sacred or not, of course, is a theological question. But he had real reverence for the Constitution and he found authority in those documents and he wanted us all to use that authority to order our lives.

  • 10:14:14

    REHMIt's fascinating to hear you say, Jeffrey, that his decisions you have used in teaching and you've had to struggle with some of the words. We've heard from one lawyer who said he couldn't figure out the decisions, that they were so difficult that he went round and round and made those decisions difficult to understand deliberately. You don't feel that way.

  • 10:14:55

    ROSENI don’t think so. He wrote like a dream. He was writing like the best op-ed writer. You know, I envied him as a journalist because he was better. He would sit at his typewriter and by several accounts would say, wow, there's a zinger. I've really got them. He wrote like he was telling it to people over dinner, which is, of course, the best way to write. And when he said things like, day by day, week by week, the court is constructing an America I do not imagine, the fact that I remember these phrases is a tribute to the excellence of his writing.

  • 10:15:24

    ROSENWho else -- only Holmes, in this century, would have the aphorisms. The 14th Amendment doesn't enact Mr. Herbert Spencer's social statics. That's another phrase. And Scalia had the gift for the memorable aphorism, for distilling the essence of the principle into something that people could understand is why he was a great communicator as well as a great justice.

  • 10:15:42

    TAYLORDon't forget, arble-bargle bargle.

  • 10:15:43

    REHMAnd Stuart, you mentioned...

  • 10:15:44

    ROSENYes, argle-bargle, absolutely.

  • 10:15:45

    REHM...you mentioned his friendship with Ruth Bader Ginsberg. How do you parse that out?

  • 10:15:53

    TAYLORWell, they became friends when they were both judges on the U.S. Court of Appeals for the District of Columbia circuit, which is kind of the farm team for the Supreme Court or has been a lot of the time. And when she -- I mean, the both loved the opera. They got along very well. They had wonderful conversations. I heard a radio interview with them being replayed when I was driving the car yesterday and you thought, boy, if everybody running the U.S. government got along like these two people, it would be wonderful.

  • 10:16:19

    TAYLORJustice Ginsberg, obviously, doesn't -- neither one of them obviously held a grudge about the fact that the other had very different views on almost every issue. And Justice Ginsberg, as I think I mentioned earlier, says, he makes me laugh. She loved him. He loved her. If I could digress, I think that, you know, the pro-Scalia response to the kind of criticism that we've heard and it's just food for thought is, he would say, I'm not here to run the country. I'm here to -- the judiciary has a -- we're not supposed to save various groups of people from the rest of the country.

  • 10:16:57

    TAYLORWe're supposed to enforce certain laws and context and constitutions. Now, I think you can fairly criticize him for not being completely consistent and for sometimes abusing the judicial power the way he accused others of doing it.

  • 10:17:11

    REHMAnd Dahlia, would you say that his decisions, for example, on gay marriage or anything of that sort that were so controversial, does that go back to Ron's point that the justice lived in another century in his head?

  • 10:17:32

    LITHWICKI certainly think that if you consider the very nature of originalism, textualism, what he wanted to do was go back to the original public meaning of the Constitution and of statutes as written. What that means, of course, is that in his view, the death penalty is constitutional and it always will be.

  • 10:17:51

    REHMDahlia Lithwick, she's a reporter covering the courts and law for Slate.com. When we come back, we'll move on to what comes next. Stay with us.

  • 10:20:02

    REHMAnd as you can well imagine, after the sudden death from natural causes of Justice Antonin Scalia over the weekend, which was such a shock to all of us, this hale and presumed hearty man of 79 died apparently peacefully in his sleep, a death many of us would, indeed envy. Now, of course, comes the big political battle.

  • 10:20:41

    REHMHere in the studio to talk about exactly that, Dahlia Lithwick. She's a reporter covering the courts and law for Slate.com. Stuart Taylor, he's at the Brookings Institution. He's the co-author of "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It." Ron Elving is senior Washington editor for NPR News. And Jeffrey Rosen is president and CEO of The National Constitution Center, author of the forthcoming book, "Louis D. Brandeis: American Prophet."

  • 10:21:28

    REHMSo, Ron Elving, I'm going to start with you and get you to explain the political battle ahead. But let me just read you an email from Jim in Freeport, Fla. Because we've heard Republicans say they believe that no nomination should come from the president and if one does nothing's going to happen. So, here's the email from Jim in Freeport, Fla., who says, the way the Constitution reads, it's quite clear. If Republicans in the Senate refuse to hold hearings on the nominee or refuse to allow a vote on the nomination, they could be charged with failure to perform, a rather high crime. And he goes on to ask, can you imagine 41 Republican senators before the D.C. District Court charged with treason?

  • 10:22:43

    ELVINGI believe that could be characterized as a reach -- a stretch of the situation, as critical as the situation is. And I certainly don't mean to underemphasize the drama of what the Senate is proposing to do here. But I don't think that that has really been a reasonable standard. If you talk about failure to perform, there may have been a Senate or two back over the years that could have been accused of that. This is a dramatic moment. And the Senate Republicans have chosen to make a certain kind of statement to, I think, the base of the Republican Party, that they will not be in any sense complicit in allowing President Barack Obama to replace Antonin Scalia.

  • 10:23:22

    ELVINGNow, if this were Ruth Bader Ginsberg creating a vacancy, if it were one of the other liberals on the court, they might not be quite so adamant. But this man occupies a very special space, as we've just been saying. And to let him be replaced by Barack Obama goes to not only their political sense but perhaps some almost fundamental definition of their political notion of themselves and their party and everything it stands for. We talked about how important he is to the conservative movement. The only person who is more important to conservatism in America in the last 50 years would probably be Ronald Reagan, the man who appointed him.

  • 10:23:57

    ELVINGSo they really don't want to see him replaced by Barack Obama. Still -- still, given that, Chuck Schumer yesterday said on -- I believe it was, well, one of the television shows yesterday morning -- he said, I'm going to stop Ted Cruz in the hallway when we get back to the Senate. I'm going to show him the Constitution and I'm going to ask him to show me where it says that the president is elected for three years. Because this president has an obligation for the full 48 months of his term to fulfill all of his duties, and that includes naming a Supreme Court nominee. And for the Senate to totally refuse to even consider that is, well, it seems to me they are at risk of giving everyone an example of obstructionism that goes beyond anything else thus far.

  • 10:24:41

    REHMAnd that precisely is a comment on our website, which says, the anti-establishment mood of voters will not look kindly on obstructionists in November. Senate Majority Leader Mitch McConnell may not realize it. He's playing with fire on this one. Dahlia, would you agree?

  • 10:25:07

    LITHWICKIt's funny, Jeff and I were talking right before the show that this notion that suddenly people are going to balk at GOP obstructionism. I mean, really? Now, we're going to balk? They shut down the government. I'm not sure that you can ever be too obstructive for the voters right now, because they seem to love and even reward Republican obstruction. So I'm not sure what the real cost of slow-walking this or not letting it happen at all. It seems to me that the GOP has made obstruction an art form in recent years.

  • 10:25:36

    REHMWhat do you think, Jeffrey Rosen?

  • 10:25:38

    ROSENSo let's look at history, and there is some. I think the closest analog probably is Louis Brandeis, my hero. He was nominated on January 28th of an election year, which was 1916. It took 125 days for him to be confirmed -- the longest period between nomination and confirmation. He was confirmed on June 1, 1916. The difference is that that was a Democratic president facing a Democratic Senate, and this is apparently the first time since 1895 that a Democratic president has nominated a justice facing a Republican Senate with the lame duck...

  • 10:26:17


  • 10:26:17

    ROSENFor the lame duck situation, and in that case 44 Republicans joined 40 Democrats to approve Grover Cleveland's nomination of Rufus Peckham. The Congress Research Service, thank goodness I did this New Republic article last year, which I'm cribbing from wildly. It's on the Web. I'm going to give one more statistic, but it's kind of interesting. The Congressional Research Service says that there have been basically a series of -- here it is, opposition to a nominating president played a role in 16 of 34 nominations not confirmed. Many of the 16 were put forward by presidents in the last year of their presidency. Seven occurred after a successor president had been elected but before the transfer of power.

  • 10:26:59

    ROSENSo the bottom line is it would indeed be unprecedented, literally, for the Senate to refuse to hold hearings on a nominee made in February or March, but that's not at all to say that it won't happen because we are in uncharted territories. These are partisan times, and whether or not the voters will punish the Senate remains to be seen.

  • 10:27:22


  • 10:27:23

    TAYLORI think it's probably true. I think it's probably a mistake in terms of their public image for the Republicans if they just say no hearings, no nothing, for the reasons that have just been given. A more interesting question is, well, what about the filibuster? Now, I've never much liked the idea of filibustering a Supreme Court nomination, but President Obama filibustered now Justice Alito, and I'm not sure he would have standing to complain about that.

  • 10:27:48

    TAYLORAnd to do justice to the Republicans, I mean to try and do justice to them, an Obama nominee, like the previous nominees, replacing Scalia would be the biggest ideological swing in one appointment in recent Supreme Court history, maybe in the last 60, 70, 80 years. You know, you just happen -- it's a historical moment. It's like in 1987, when Robert Bork was nominated. Everybody knew, oh my gosh, he would overrule abortion, he would switch the direction of the court on many, many issues. The Democrats pulled out all the stops to stop him, and they prevented a lot of what they were afraid of.

  • 10:28:23

    TAYLORThe Republicans are now afraid that everything they care about that the Supreme Court does will go against them with one nomination, with one appointment.

  • 10:28:33


  • 10:28:34

    LITHWICKI just want to point out that this term, if Scalia had woken up in his bed on Saturday morning, the Supreme Court was poised to decide the end of affirmation action as we know it on college, abortion regulations that might have indeed done away with almost all the clinics in Texas and elsewhere in the country, the contraception mandate in Obamacare and Obama's immigration initiative. And that's not even to touch the, you know, union fees case. This was going to be the galactic term, I believe, of certainly, you know, the last 20 years.

  • 10:29:06

    LITHWICKAll of that, A, is in question now, but B, it goes to how important the work of the court is. Nobody was going to call Jeff and me and Stuart Taylor to be on the radio until one week in June, when it all exploded. But now everybody is going to see, in this country, that what the court does is so consequential not just for a week in June and not just because of the November election but because the court has inserted itself into the center of every one of these big-ticket questions in ways that we don't always notice.

  • 10:29:34

    REHMSo before we get to speculation about who might be on President Obama's list, let's talk for a minute how Justice Scalia's death and the absence of a clear majority on the court might now enter into conversation about the election itself. Ron Elving?

  • 10:30:01

    ELVINGPeople are going to ask every candidate for president, whom would you nominate to the Supreme Court? And of course we've already heard Marco Rubio say that he would appoint someone just like Antonin Scalia. Well, hello, find me someone just like Antonin Scalia. I don't think that's possible. I don't think anyone would even pretend to have that set of characteristics or qualifications. But of course they will all say they were going to nominate someone who, someone like.

  • 10:30:29

    ELVINGBut President Obama is going to put forward a flesh-and-blood human being, and that is going to be the standard because that will become the face of the controversy, and that's probably one of the reasons the Republicans don't even want to have hearings because if they had hearings, and that person turned out to be rather sympathetic, seemed perhaps quite capable of being a fine Supreme Court justice and maybe even rather an attractive person in many ways, that could put even more of a martyr characteristic onto all of this.

  • 10:30:56

    ELVINGThis is where, of course, Robert Bork, you know, went tragically wrong. He was not appealing in his hearings and probably did himself in in the answers that he gave to the senators. If someone goes the other direction, and we've seen that, too, then very possibly this could get hotter and more difficult for the Republicans. That would be the reason not to even have hearings, and we're going to personalize all of this, and I think the candidates are going to be asked, whom would you appoint. We'd like to see the name. We'd like to see the face.

  • 10:31:26

    REHMAnd who are the top candidates in your minds for that naming, Dahlia?

  • 10:31:32

    LITHWICKThe list that's floating around, and it really is floating around, this is new, includes someone like Sri Srinivasan, who's on the D.C. Circuit Court of Appeals. He's only 48. He was confirmed for the Appeals Court 97 to nothing, that means all the people who are going to hate him voted for him only a few years ago. Paul Watford on the Ninth Circuit Court of Appeals, 48 years old, African-American, very, very, very beloved. Patricia Millet on the D.C. Circuit. And then a lot of interesting talk, by the way, about people like Kamala Harris, the attorney general of California, Loretta Lynch, the attorney general of the United States, Amy Klobuchar if the Senate wants to put one of their own in.

  • 10:32:14

    LITHWICKSo lots of interesting names. I'm sure there's dozens more. But we're talking about people who are young, often of color, often women, and I think that that's the way that Obama, if he wants to do this, gets women and minorities engaged in this election in a way they haven't been until now.

  • 10:32:30


  • 10:32:33

    TAYLORI'd just like to agree with Ron. What I think he started to say, the real risk for the Republicans in going ahead with hearings, why not go ahead with hearings, is you put a human face, a very appealing human face, the people Dahlia's talking about are very special people as far as I can tell, all of them. So it's one thing to say no, we're not going to have hearings, and others would say we're going to -- we're not going to allow a vote on that woman or that guy. That's going to become very, very tricky for the Republicans, and I think that's why they would like to cut it off without hearings.

  • 10:33:03

    REHMJeffrey Rosen, do you really believe that Republicans will do nothing but stop President Obama?

  • 10:33:13

    ROSENI do. That's what they've said they're going to do, and I don't see any reason why, from their point of view, they should do anything else. Remember, we were moving toward this point over the past decades. John Roberts never got a hearing the first time he was nominated to the D.C. Circuit, and his nomination was withdrawn. His Democratic counterpart never got a hearing. So because of the risks that my colleagues have pointed to of putting a face on the nominee, if I were the Republicans, I don't see why I would hold hearings, either.

  • 10:33:42

    REHMAnd you're listening to the Diane Rehm Show. So the -- is that your feeling, as well, Dahlia, that Republicans will not accept the nomination, whoever is put forward, and not hold hearings?

  • 10:34:03

    LITHWICKI think so. I think Jeff nails it. I think the cost of doing it is very, very high. The cost of going forward with hearings is very high, and I'm not sure that there's a feeling that there's any benefit that accrues to going through this.

  • 10:34:16

    REHMRon Elving?

  • 10:34:16

    ELVINGWell, here's the evidence. On Saturday night, we heard Ted Cruz saying no way, we're not going to do anything. Mike Lee from Utah said the same thing. No surprise from either of those two people. They define one end of the spectrum in the Senate. Then we heard Mitch McConnell, who is, after all, the Senate majority leader and more or less in charge of this place. And then we heard Charles Grassley, who is the chairman of the Senate Judiciary Committee and in charge of this process, both say no way, no how.

  • 10:34:40

    ELVINGBut really crucially, on Sunday we saw Kelly Ayotte from New Hampshire and Ron Johnson from Wisconsin. Now those two people are considered among the most, if not the very most, vulnerable Republicans running for re-election this November. If they're willing to come out and say we're prepared to leave it up to the American people to choose another president, rather than let this president choose the successor to Antonin Scalia, then they have made their political calculation.

  • 10:35:08

    ELVINGNow whatever pressure they're under in their home state, they don't want any part of the kind of struggle they might have if we actually had hearings and if we actually saw a human face.

  • 10:35:19

    REHMSo in the end, you think there will be no hearings?

  • 10:35:24

    ELVINGThat is the strategy to which they've committed themselves. It's going to take a major climb-down for them to suddenly say, oh, you're naming Jacqueline Nguyen from Southern California, who's on the Circuit Court of Appeals for the Ninth Circuit out in California. Well, you know, she's the daughter of a Vietnamese major general, major -- an officer in the Vietnamese army, and they came here in 1975 after the fall of Saigon, and they're such a sympathetic family and such a sympathetic figure, maybe we'll have hearings for her.

  • 10:35:51

    ELVINGNo, I don't think they can do that.

  • 10:35:53

    REHMOkay, so how would no hearings affect the thinking of the American public, Jeffrey Rosen?

  • 10:36:04

    ROSENThe thing of the American public, well, the American public has been told for the past five presidential elections it's all about the Supreme Court, you've got to pay attention. And political scientists have established that the court has not really played a decisive role in any of these elections. We're about to see, as Dahlia said, week after week, decisions, either split four to four that are at the center of American life, the question of voting districts, immigration and so forth.

  • 10:36:32

    REHMAnd what happens if they get split four to four?

  • 10:36:35

    ROSENSo if the decision is four to four, then the lower court is affirmed. That will make a huge difference in cases like the Fisher union dues cases where the court had seemed poised to say that public-sector unions could not compel people to give dues. Now a four-to-four split would affirm the lower court, allowing the dues to be compelled, and it could also make a difference in this huge case about whether you use all voters or all the entire population as the basis for voting districts.

  • 10:37:04

    REHMAnd the abortion issue?

  • 10:37:07

    ROSENAnd the abortion issue might have been five to four. We haven't heard the oral argument yesterday. But more significantly, but the abortion case could've been an opportunity for at least the four conservative justices really to signal their effort to overturn Roe. Now the calculus is entirely on the other side.

  • 10:37:22

    REHMJeffrey Rosen and Stuart, Ron Elving and Dahlia Lithwick all here to respond to your thoughts, your questions. Stay with us.

  • 10:40:01

    REHMAnd welcome back. Time to open the phones. 800-433-8850. First to Craig in Baltimore, Maryland. You're on the air.

  • 10:40:15

    CRAIGGood morning, Diane. How are you?

  • 10:40:16

    REHMFine, thanks.

  • 10:40:18

    CRAIGI'm calling because I'm an attorney here in Baltimore and Justice Scalia to me just represented the worst that justices could be on that bench. I think he hid behind the Constitution in his Catholicism and made what I considered quite bigoted opinions. The way he treated women, especially the way he treated gay marriage. I just -- I found it astounding that nobody ever brings up the fact that he would have fit in with the decisions of Dred Scott or Plessy v. Ferguson the way he went about.

  • 10:40:50

    REHMDahlia, you did make the point about the people who felt totally disenfranchised by Scalia.

  • 10:40:59

    LITHWICKYeah, I think Craig speaks for a lot of people. I get a lot of mail in the last two days from people saying, you know, he had contemptible opinions. He made life demonstrably worse in this country, his vote for women, for people who seek abortions, for women who need contraception. That, you know, you can't just slough this off and say, oh, he was a bon vivant. He liked cigars, he liked the opera. Because for a lot of people, that's just not enough. They really think he used his time on the bench to do harm and to try, as Ron suggests, to set this country back several centuries.

  • 10:41:34

    REHMAll right.

  • 10:41:34

    LITHWICKAnd I think we have to reckon with that as part of his legacy.

  • 10:41:36

    REHMHere's a tweet saying the panelists cited all of Scalia's conservative values. Isn't a Justice supposed to be non-partisan, non-party affiliated? Stuart.

  • 10:41:54

    TAYLORWell, Justices are supposed to be non-party affiliated and non-partisan, of course, but it's harder and harder to see them that way. Any of them, frankly. Because they are now polarized 4-4. They were polarized before Scalia's death, 5-4 between people who are conservative almost all the time. People who are liberal almost all the time, and one person, Kennedy, who went back and forth. And so, you know, it's hard to separate the law from the politics this day and age. And abortion's a good example.

  • 10:42:25

    TAYLORA lot of people hate him for what he did about abortion. What he said was about abortion is, if the states want to legalize abortion, in every case, in some cases, the states can do that. I'm not here to stop them. I'm just not here to put something into the Constitution that the framers never put in there and the Amenders never put in there that creates an abortion right that should be a matter of legislative policy. That would be his defense.

  • 10:42:51


  • 10:42:52

    ROSENA quick point on this important question. Scalia insisted there was a distinction between law and politics. That was his central contribution to jurisprudence. And in fact, there were some very important areas where his politics and his jurisprudence diverged. He wrote some of the greatest dissenting and majority opinions in 4th Amendment search cases ever. I just love, as a 4th Amendment junkie, his dissent from the DNA collection case, where he said our royal forbearers would never have allowed these intrusions into citizens' mouths.

  • 10:43:21

    ROSENOr his great opinion in the GPS tracking case or his decision upholding, rather striking down bans on flag burning. Or he was very proud of his decisions requiring accused people to confront their accusers, even accused rapists. These are significant cases. Now, you can say there were other cases where he seemed to betray his principles and didn't take original understanding seriously. He never adequately explained why his theory was consistent with Brown v. Board of Education.

  • 10:43:51

    ROSENAnd when pressed on this, he would basically say well no theory is perfect. But I think Scalia really deserves credit for having insisted that, at their best, the Justices are not politicians in robes. There should be a distinction between law and politics.

  • 10:44:03

    REHMAll right.

  • 10:44:03

    ROSENAnd in his best opinions, he did that.

  • 10:44:04

    REHMTo Casselberry, Florida. Hannah, you're on the air.

  • 10:44:09

    HANNAHThank you for taking my call, Diane.

  • 10:44:10


  • 10:44:10

    HANNAHThe Republicans in the Senate want to delay action, because they hope the next President will be a Republican. But what if Bernie Sanders is elected? Who would he nominate? It is the third time that President Obama has the chance to nominate a Supreme Court Justice. Maybe God is trying to send a message to the conservative Christians.

  • 10:44:29

    REHMRon Elving.

  • 10:44:30

    ELVINGYeah, you may have heard me reacting to that as the caller talked, because this is a great issue. This is an absolute dagger, it seems to me, that the Republicans are risking by taking on this attitude of we won't even touch it. If they were to sit down and say, hmm, maybe we should use this as a moment to bargain with the President, who would love to get a third appointment to the court and would love to be able to change the majority on the court and find somebody we could all accept.

  • 10:44:59

    ELVINGBecause, if Bernie Sanders is the next president of the United States, he is going to choose someone and he might -- if he gets elected, hey, I'll go out on a limb. If Bernie Sanders gets elected president, he may just bring in a Democratic Senate with him and if he does, he could nominate somebody and confirm somebody who would be much more different from Antonin Scalia than anyone probably that Barack Obama would ever conceive of.

  • 10:45:23


  • 10:45:23

    LITHWICKI think this is such an important point, that the downside here of obstruction is that you may get a list that sounds very different from the list I read to you earlier of centrist, moderate, people who are already confirmed. This is when I think a Bernie Sanders or a Hillary Clinton, who by the way, has made it a point to say they want someone who will do away with Citizens United, whether that's constitutional or not. On the first day they take the bench, Citizens United is gone, says Bernie of his putative nominee, which is crazy.

  • 10:45:54

    LITHWICKBut I think those possibilities of the kinds of people they would put up are much closer to the Scalia like bomb thrower of the left.

  • 10:46:03

    REHMSo Stuart, how do you react to that?

  • 10:46:09

    TAYLORWell, I think first, if you're a Democrat, if you're a Republican leader, you've got a problem with the Republican electorate. If they don't fight every step, tooth and nail, no hearing, no nothing, no nominee, the Republican electorate will punish them for it in the primaries. On the other hand, there's a lot to what the folks are saying here, which is, the Republicans, if they stop a nominee here, they run a big risk that they get someone in the next administration, if either Hillary Clinton or Bernie Sanders, that they're going to like a lot less.

  • 10:46:41

    TAYLORAnd that's the incentive they might have, some of them, to try and make a deal with the President on someone mutually acceptable. The problem is, try and think of someone mutually acceptable.

  • 10:46:51

    REHMYeah, exactly.

  • 10:46:51

    TAYLORI can't think of one.

  • 10:46:53

    REHMAll right, let's go to Carrolton, Texas and Jim has a point to make on that very issue. You're on the air.

  • 10:47:02

    JIMOh, thank you for taking my call.

  • 10:47:03


  • 10:47:05

    JIMThis is unprecedented, because this is the first time in American history when the balance makeup and direction of the Supreme Court is on the ballot. The American people are going to get to decide what direction the Supreme Court will take for a generation. I would be surprised if this doesn't elevate turnout five to 10 million votes. People all over this country are affected by Supreme Court decisions that have already been made and they get to decide whether those future decisions are gonna go left or right.

  • 10:47:41

    REHMJeffrey Rosen.

  • 10:47:43

    ROSENThere have been decisions -- elections before where the Court has been central. The Dred Scott decision was mentioned and that decision was actually decided before the election and leaked to President Buchanan, who, in his Inaugural Address said, hold on, we're going to find out soon what the court is about to do. But I hope the caller's right is as Dahlia and others have said, I think it would be a great thing if the country focused on the centrality and importance of the Court. There's almost nothing more important that the next President will do than appoint one or more Justices.

  • 10:48:12

    ROSENSo, focusing your vote on that question would be great. Of course, the punch line of this chess game that we're playing out might be that Hillary Clinton has said that she would consider appointing none other than Barack Obama himself, so the Republicans really may get more than they hope for.

  • 10:48:29


  • 10:48:29

    LITHWICKI just want to point out that the people who hate conversations about making the court central in an election are the Justices. And that John Roberts only recently gave up and gave a really important speech where he said, please don't politicize us, please don't talk about us as though we are chess pieces. Because what we do transcends that. And so, I think, you know, while Jeff is completely right and we are going to be talking about the Court for the next 10 months, and we should be talking about the court for the next 10 months, we should also think about the valance around this.

  • 10:48:59

    LITHWICKWhat does it mean to politicize the Court in the way it's about to be politicized?

  • 10:49:03

    REHMAll right. Here's an email from Annette. Can the court itself refuse to consider some cases if there's no new Justice by June or before October? Stuart.

  • 10:49:19

    TAYLORSure, they sure can. I mean, they don't have to say we're announcing that we're not going to consider any cases.

  • 10:49:25

    REHMThey just don't.

  • 10:49:26

    TAYLORAll they have to do is say, (unintelligible) denied, which means we're not going to hear that one. And that's probably the wise thing for them to do, if they can see that a case A, that there's not going to be a new Justice soon, and B, that if they case X, it's going to be deadlocked 4-4. It would be a wasted of their time to go through the whole process of hearing arguments and considering it. So I would expect that if they expect 4-4's and they expect no Justice any time soon, they will turn away big cases.

  • 10:49:53

    ROSENThey can also do something they did in the 1970s, with 4-4 splits, hold the case over for re-argument. In other words, they vote, they see there's a split, and without explanation, they say come back and talk to us next year when we expect to have another Justice.

  • 10:50:05

    REHMAll right, to Louisville, Kentucky. Hi, Joe.

  • 10:50:10

    JOEGood morning, Diane. I'm down here in Kentucky, the home of the cheap obstructionist, Mitch McConnell. But I didn't want to call about him. That's what he's best at. I wanted to talk about Ted Cruz very quickly. I saw on the news, he made a comment, and I can't quote it verbatim, but he said something along the line of we're not going to allow our Court, his Court, his possessive Court to be taken over by Obama and the radicals. I just -- I was stunned to hear that, that he claimed that court.

  • 10:50:40

    JOEA quick word about Mr. Scalia. I think that he was -- wasn't so much a strict constructionalist as he was a regressive. And he seemed to revel in it. He wanted to live 200 years plus ago and have the laws stay stagnant from then. There'd be no human progression at all.

  • 10:51:00

    REHMWhat do you think about Joe's comment regarding the whole idea of his court, Ted Cruz?

  • 10:51:10

    ELVINGIt is possible that a Republican could look back over the last half century and do a calculation and say, hey, most of the these people who have served on the court and dominated the court in the last half century, since basically the Warren court, have been appointed by Republicans. Now, not all of those Justices have turned out to be conservative stalwarts by any means. David Souter, appointed by the first President Bush, turned out to be pretty liberal. John Paul Stevens, appointed by Gerald Ford, turned out to be a leading liberal.

  • 10:51:40

    ELVINGAnd some people would say that John Roberts has been something of a disappointment to the right, even though most people see him still as quite conservative. Some find him insufficiently so. Not at least as orthodox as they'd like him. Besides, there was that vote that saved Obamacare. So, you know, it's all a little bit relative, but it's fair to say that for the period of time since the Warren Court, and let's remember even Earl Warren was appointed by a Republican, this has been primarily a Supreme Court appointed by Republicans and they have some reason to think of it as theirs.

  • 10:52:11


  • 10:52:12

    TAYLORI have a little hobby horse and I'll disagree, in part, with that. If you plot the Supreme Court's decisions, over the last half century, and most recently against the Gallop Poll on abortion, on affirmative action, on other racial issues, on voting rights, on the death penalty, on gun rights, the Court's decisions have been to the left of center of public opinion on all of them. And I think the reason we see it characterized so often as a conservative court, you know, the Republicans do get a lot of the appointments, but they didn't turn out to be very conservative, a lot of them.

  • 10:52:43

    TAYLORBut I think the reason we hear so much about it has more to do with the perspective of the mainstream media than it does with reality.

  • 10:52:51

    REHMStuart Taylor of the Brookings Institution. And you're listening to The Diane Rehm Show. We've got lots of people asking about the possibility of a recess appointment. Jeffrey, what would that mean?

  • 10:53:10

    ROSENOh my goodness, my colleagues will jump in if I'm getting it wrong. The first question is is the Senate technically in recess, and that will determine what the leaders decide. And I assume that they will act this week to get back into session so that they will not allow a recess appointment to be made. That's my sense.

  • 10:53:29

    REHMI don't understand. Why can't he make a recess appointment?

  • 10:53:34

    ROSENHe could if the Senate were in recess, but it's a technical question of whether it is or not. And of course, there was that very important Noel Canning case just recently, where the Supreme Court itself said that these technical recesses, where the Senate just comes back in for a moment, may not count. But basically, the Senate now knows what it has to do to get out of recess, cause the Supreme Court has told it, and I'm quite confident that they will meet those criteria and not leave that window open.

  • 10:53:57

    ELVINGIt seems likely. I believe that three appointments by Dwight Eisenhower were initially recess appointments, and then later, were confirmed as full and normal regular appointments. It's not an evil thing, necessarily, in and of itself, but it has already been a big controversy between Barack Obama and this Court. And it has already been determined by this Court, the Roberts court, that they want to define a recess quite differently from some of the old fashioned notions of it.

  • 10:54:23

    ELVINGAnd that the Senate really needs to be, in some sense or another, over and done with for a year before it would considered a recess, in which there could be such an appointment. So, I don't think this is going to be a factor.

  • 10:54:34

    REHMOkay, we've got about two minutes left here. What do each of you realistically think may happen? Jeffrey Rosen, I'll start with you.

  • 10:54:50

    ROSENPresident Obama will nominate a Justice to the Supreme Court and that Justice will not receive hearings until after the 2016 election when Obama's successor will make another nomination.

  • 10:55:02


  • 10:55:02

    LITHWICKI'm afraid I agree. I think it's either slow walked that this just, that we don't have hearings or that we have hearings that go forever and ever until we're very, very, very old. But I think this is not going to -- there is not going to somebody seated.

  • 10:55:15


  • 10:55:16

    TAYLORI think the no hearings is the most likely, but just to pick an alternative, if they have hearings on a nominee and they can justify voting the nominee down on the merits, which might not be easy if the nominee is appealing. That's probably the best case for the Republicans.

  • 10:55:35

    REHMFor Republicans.

  • 10:55:37

    TAYLORYeah, that, the Republicans would look better if they're voting someone down on their merits.

  • 10:55:40


  • 10:55:40

    TAYLORThan if they're just saying, we're not going to do anything.

  • 10:55:44

    REHMBut how much likelihood is there that a group of wise Republicans would think it's probably better for us to at least show the public we're trying.

  • 10:56:00

    TAYLORYou're making a large assumption when you say wise Republican Senators. But that's why I agree fundamentally with what Jeff said, which is no hearings, nothing happens. A lot of screaming and yelling and the next President appoints the next Justice.

  • 10:56:14

    REHMRon Elving.

  • 10:56:16

    ELVINGI think Stuart is absolutely right that the Republicans would be well served by a swift rejection of whomever the President nominates. That makes perfect sense, why not just do that? But if they don't, and I also agree that it seems unlikely they're going to climb down from the things they have said, which are extremely difficult to climb down from. What will happen instead is a political battle between the candidates for President and a monumental media battle, which is why the President needs to choose someone very appealing, who will make a just perfect martyr.

  • 10:56:49

    REHMWell, on that note, we leave this discussion, only for now. Because we're going to come back to it an awful lot between now and November the 8th. Ron Elving, Stuart Taylor, Dahlia Lithwick, Jeffrey Rosen. Thank you all.

  • 10:57:10

    LITHWICKThank you.

  • 10:57:11

    TAYLORThank you.

  • 10:57:12

    ROSENThank you.

  • 10:57:12

    ELVINGThank you, Diane.

  • 10:57:13

    REHMTerrific discussion. And thanks for listening, all. I'm Diane Rehm.

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