IN MEMORIALIZING Antonin Scalia, who died Saturday at age 79, President Obama pronounced him "one of the most consequential judges and thinkers to serve on the Supreme Court."
It's an accurate judgment. What Obama didn't say, and which should be said, is that Scalia's 29-year tenure on the Court changed it profoundly for the worse.
Reportedly, the man whom friends and family called "Nino" was a loving husband and father, with nine children and more than 30 grandchildren. He loved opera and apparently was quite charming and funny in person, a great friend to fellow justice Ruth Bader Ginsberg.
But Scalia's legal legacy is neither charming nor funny. He used his eloquence and writing skills to promote diminished rights for minorities, women and workers, growing corporatism and wealth inequality and the increased proliferation of guns - not to mention the extra-Constitutional interference in the electoral process in 2000 that brought the nation President George W. Bush. He ignored ethical conventions, attending partisan fund-raising functions and famously going hunting with Dick Cheney while the court was considering a lawsuit against the vice president. In recent years, his comments during hearings could echo the blather of right wing talk shows.
In the early years of his tenure, Scalia was a defiant outsider, writing blistering opinions that a majority of the court, not to mention a majority of Americans, rejected. In particular, Scalia's philosophy of "originalism" held that the law should be interpreted, not in light of modern-day realities, or even by what the 18th-century framers intended, but only the words on the parchment. "The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring," he said.
Even when Scalia's wacky views did not fully prevail, he managed to bring them closer to the mainstream from the fringes where they belong. He supported the use of the death penalty for children because that was the law when the Constitution was written. He made a case for torture. (In one interview, he cited the fictional Jack Bauer from the TV show "24" as a kind of authority). He not only fought against the rights of gays and lesbians, but wrote of them with contempt.
His death provides an opportunity to begin to change the court back again. President Obama should quickly fulfill his pledge to nominate a replacement. Only hours after Scalia's death became known, Republican leaders insisted that the president not nominate a replacement, just another instance of the opposition to him actually acting as president. Obama immediately rejected that notion.
Some pundits suggested that Obama should try for a "consensus candidate" - for example, one of a few judges who have been approved overwhelming for lower courts. But anyone who hasn't been comatose for the last few years knows that a "consensus candidate" just doesn't exist. Besides, any nominee who could get votes from the Republicans would be wrong for the job.