Benson: Scalia vacancy chance to actually govern

Jocelyn Benson

The death of U.S. Supreme Court Justice Antonin Scalia is an extraordinary moment in the middle of an historic time for our democracy. The sudden loss of one of the most influential jurists in modern history occurs in the midst of a particularly contentious presidential election cycle where the most common theme is an inherent distrust of insiders and politicians, no matter their record, qualifications or experience.

If the 2016 presidential election has emerged with any trend or theme, it is that American people of all perspectives, parties and ideologies are tired of the cynical stalemate in Washington.

The unanticipated vacancy on the nation’s highest court provides a chance for political leaders to show they can end it. They should seize the chance to do so, for the benefit of our judiciary and our country.

Article II of the Constitution provides the executive branch with the ability to appoint justices to the Supreme Court with the advice and consent of the Senate. It intentionally requires consensus and collaboration among opposing parties. And when each party has control over a respective branch, as is currently the case, it ensures the ultimate nominee is respected and well regarded enough to earn the support of leaders in both parties.

Indeed, Democrats and Republicans successfully have found a way before to work together in hyper-partisan times to execute their constitutional duty and ensure our third branch of government was fully functional.

The sitting president and Senate leaders have worked together six times since 1900 to successfully fill a vacancy on the Supreme Court during a presidential election year. In five instances the same political party controlled both the presidency and the Senate: in 1912 under President William Taft; twice in 1916, under President Woodrow Wilson; once in 1932 with President Herbert Hoover; and in 1940, when President Franklin Roosevelt nominated and the Senate confirmed Frank Murphy to succeed Pierce Butler, who had passed away the previous November.

The sixth and most recent instance is the most informative.

In June 1987, a prominent conservative Supreme Court justice, Lewis Powell, retired from the court. Between June and November of that year, President Ronald Reagan saw the first of his nominees, Robert Bork, rejected in the then-Democratic-controlled Senate. In November 1987, Reagan nominated Anthony Kennedy to fill Powell’s seat. The Senate confirmed Kennedy’s appointment in February 1988, just as that year’s primary season began.

The result? Reagan and the Democratic leaders in the Senate worked together and appointed someone now widely seen as one of the more moderate, independent and least predictable justices on the court. The quintessential swing vote, Kennedy wrote the majority opinion in Citizens United, allowing unlimited corporate contributions to influence elections, and Obergefell v. Hodges, legalizing marriage equality under the Constitution. He is our best example of a modern justice who cannot be characterized as either reliably liberal or conservative.

The lesson learned from Kennedy’s 1988 appointment is that a consensus candidate who can emerge with the support of both parties can reliably serve as a justice who is an independent, middle of the road, consensus appointee, dedicated to applying the rule of law over any partisan inclination.

Isn’t that precisely the type of appointee most Americans would hope to see fill this 2016 judicial vacancy?

As we continue through one of the most anti-establishment election seasons in modern times, Democratic and Republican “establishment” leaders have an opportunity to demonstrate that they can put the need for a fully functioning Supreme Court ahead of either side’s political agenda.

It is an opportunity they would be smart to seize to further not only their own best interests but those of our country as well.

Jocelyn Benson is dean of Wayne State University Law School.