Antonin Scalia hasn’t been buried yet. Since his death was discovered Saturday morning, not one hour of one business day has yet passed.
The fact that we’re already approaching DEFCON 3 in the fight over who will succeed him on the Supreme Court of the United States is a sign of what President James Buchanan would call “a disease in the public mind” — the present disease being of a kind that would make one view Mary Crawford, who regarded happily the prospective enlargement of Edmund Bertram’s inheritance while Edmund’s older brother Tom was gravely ill but still alive, as the heroine of Austen’s Mansfield Park. I think about five seconds elapsed between the first news I had of Scalia’s death and the first published remarks about who’d be replacing him. Always keep the strategems sharpened, the hands ready to collect the spoils, and all that.
Were he alive, I do not doubt Scalia himself would have regarded with distaste the prospect of being replaced by a non-originalist, non-textualist Justice. However, I also have no doubt that Scalia the textualist would have loathed the idea of adding some kind of extra-constitutional “election year exception” to the appointments clause of Article II.
The world often is not a nice place for those who adhere consistently to firm principle — for circumstances that make the principle inexpedient are usually crouching at the door. But taking expediency over principled consistency generally creates bigger calamities: it damages the world, and has a strange way of backfiring sooner than the compromiser foresees. What that means, if you’re a textualist, is your philosophy doesn’t admit exceptions for distasteful results — and if you compromise for expediency now, your compromise will, sooner or later, produce results far more disastrous than the addition of one more Living Constitutionalist to the Supreme Court.
That’s already too much commentary for a holiday Monday, but I’ll add just a few words more.
For the living — those actually charged with the responsibilities of appointment and advice and consent, and the chattering onlookers — the text of the Constitution prescribes the next steps of this dance.
For the Scalia family and all the grieving, may God comfort them.
For Antonin Scalia: thank you, sir, for your good service to our nation; and rest in the peace of Christ.