I had the pleasure of meeting Justice Antonin Scalia in May of 2013, when he graciously met with a delegation from the Georgia Association for Women Lawyers who visited the Supreme Court to be sworn in. He was short – shorter than me (I’m 5’6”) but his presence was enormous. No matter what you think of his politics, you can’t argue with the greatness of this man. Think of it this way: even if you don’t like the Beatles’ music, if you had the opportunity to chat with Paul McCartney you’d take it and run and tell everyone about it and post pictures of you and Sir Paul on every single social media outlet.
That was what it was like in nerd-land, meeting a rock star of McCartney’s level.
(p.s. I do like the Beatles.)
Justice Scalia was personable and charming. He mostly told us stories about Ruth Bader Ginsburg, and the history of the room we were in. We were in the spouses’ dining room, which was referred to as the wives’ dining room prior to the appointment of Sandra Day O’Connor. (Justice Scalia accidentally said Justice Ginsburg, and my friend Shira corrected him, thus giving her a story to tell for the rest of her life.) We learned that Justice Ginsburg’s husband was a great chef, but (and I’m quoting here) “Ruth can’t boil water.”
And so, now Justice Scalia has suddenly passed away, leaving a vacancy on the Supreme Court. How he will be replaced is a Constitutional issue. Article II, Section 2 of the United States Constitution says simply that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court.”
So the President has to (not gets to) pick someone, with the “Advice and Consent” of the Senate. What does Advice and Consent mean? The United States Senate has its own glossary, and it defines Advice and Consent rather circularly: “Under the Constitution, presidential nominations for executive and judicial posts take effect only when confirmed by the Senate.” “Confirmation” is defined as an “informal term for the Senate giving ‘Advice and Consent’ to a presidential nomination for an executive or judicial position.” Black’s Law Dictionary defines “Advice” as a “view, opinion ; information…an opinion expressed as to wisdom of future conduct.” “Consent” is defined as, among other things, “A concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith. Agreement; approval; permission; the act or result of coming into harmony or accord.”
Not terribly helpful, in terms of procedure. What we do know is that there will be a lot of procedural posturing on all sides and, as my friend Suzanne wisely and colorfully put it, “A great big gooey chocolate cupcake thrown on the anthill that is politics in 2016.”
Rest in Peace, Justice Scalia, and know that your legacy was a large one.