This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Suppose that in one of the infinite alternative universes some theoretical physicists say exist, Antonin Scalia was a United States senator instead of a Supreme Court justice.
In this universe, President Obama nominated Judge Merrick Garland. Within an hour of this news, the Republican majority leader, Sen. Mitch McConnell, announced that the Senate would not meet with, hold hearings on, or allow a vote on Judge Garland. Every Republican senator voiced support for the leader, save one. Democratic senators angrily claimed a violation of the Constitution. All eyes turned to Sen. Scalia, the Senate's constitutional authority and the sole Republican holdout.
Sen. Scalia passionately believed that words mattered when interpreting the Constitution. Faced with a constitutional issue, he would read each word of the document. If he found that the text was clear, his research was done. He compared the text with the conduct in question. If the challenged conduct did not violate the Constitution, he voted as a conservative Republican.
Here he would face the nomination issue no differently. His starting point was Article II, Section 2 of the Constitution. His eyes focused particularly on this passage: "The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court ... "
Sen. Scalia saw instantly that the majority leader was not "the Senate." Nor was the Republican Caucus. The "Senate" meant 100 members, two senators from each sovereign state. And the phrase "Advice and Consent" meant a vote by the Senate either to give or withhold its consent according to the principle of majority rule. The issue was not even a close call. He would speak in favor of voting up or down on the nomination.
News of his intentions quickly spread among Republican Senators. Majority Leader McConnell hurried to the senator's office. Did he not realize if a vote were taken, Garland might turn out to be the deciding vote on overturning Roe v. Wade?
Sen. Scalia replied sadly that might be so. But he reminded McConnell that he and all other senators had taken an oath to "support and defend the Constitution against all enemies foreign and domestic …." A senator's oath must govern a senator's vote. The Senate had a duty to vote up or down on the nominee. McConnell pleaded: Would not Scalia come with the others for the sake of the party?
At this, Scalia thought of the last four words of the senatorial oath: "So help me God." Scalia looked McConnell in the eye. No, he thought not.
McConnell reported back to the other Republican senators. Dismayed and somewhat ashamed, Republican senators, one by one, broke ranks. The Senate would debate and then vote on the nomination.
After a week of debate the last Republican to be heard, Sen. Scalia, prepared to speak against the Garland nomination. Garland was a good man, probably the best the Democrats would name. But a Republican could be elected President! He would feel better about a Republican nominee.
But at that moment, as if struck by a thunderbolt, he glimpsed into the future. He shrank from what he saw. People already viewed the Supreme Court as simply another political branch of government. A Garland rejection would further plunge the Court into politics. Someday, perhaps even in a few months, a Democratic president could be in the White House. She and her party would not forget the rejection of Judge Garland. Ahead lay an unending line of partisan tit for tat, each judicial nomination politically driven, constitutional issues reduced to television talking points.
Then he gazed even further down the road and saw in the distance a much darker vision. Looming in the gloom he saw the bombed and shelled cities of Kabul, Baghdad and Damascus. Turning away, his mind made up, he rose to speak in favor of Merrick Garland.
Lawrence J. Leigh is an attorney who practices law in Salt Lake County.