In the inner sanctuary of the Supreme Court of the United States, there is an empty chair. The man or woman who will soon occupy this chair will wield the power to slightly shift the court to the right or left. But, a slight shift makes all the difference in 5-4 opinions.
Antonin Scalia occupied this chair since 1986 when he was appointed to the court by President Ronald Reagan. His unanimous confirmation by the Senate is an example of that chamber’s once-honorable past.
His death was sudden, shocking, and broke the heart of his best friend and ideological opposite, Justice Ruth Bader Ginsburg. Some say that she still has not recovered from the loss.
With his death, the gregarious Italian, known for his intelligence, wit, protection of individual rights against unreasonable searches and seizures, and many other things, created a void in the ideologically right wing of the court. His death also left the court in a state of steady gridlock with a seemingly endless stream of 4-4 opinions.
President Donald Trump recently nominated Neil Gorsuch to become the ninth justice. Gorsuch sits on the U.S. Court of Appeals for the 10th Circuit. He is very similar to Scalia in judicial philosophy. Gorsuch believes that judges should interpret laws as they are written and enforce the Constitution as its framers intended.
His view of the duty of a judge is also similar to that of Chief Justice John Roberts. Gorsuch, like Roberts, believes that the role of a judge is like that of an umpire in baseball. The judge calls balls and strikes without favor to the race, gender, economic status, or other characteristics of the litigants. Social engineering, outcome-based rulings, and using the power of the judiciary to “change the world” are inappropriate actions for a judge to engage in.
He also brings diversity to the court. Geographically, he is a Midwesterner. Except for Georgia’s Clarence Thomas and California’s Anthony Kennedy, the other justices are from the Northeast.
If confirmed, he would also be the only Protestant on the court. Currently, the Supreme Court has five Catholic justices and three Jewish justices.
While Gorsuch must tolerate a hostile, unprofessional, and circus-like confirmation hearing, the young conservative will be confirmed. The math simply will not favor Senate Democrats in the final vote.
His addition to the country’s top court will be significant. To illustrate the importance of this ninth justice, we can look at the political makeup of the current eight-member court. In general, to the left are Sotomayor, Kagan, Breyer, and Ginsburg. To the right, are Roberts, Thomas, and Alito. In the middle we find the most powerful member of the court, Anthony Kennedy. Kennedy, the "moderate" who often casts the deciding vote in 5-4 decisions is known as the “swing vote.”
This ninth justice will reinstate the power temporarily lost by Justice Kennedy when Scalia died. By serving as the swing vote once again, Kennedy will control the outcome of most Supreme Court decisions.
I expect that Gorsuch will take his seat before the warmth of Spring rolls into the South. At 49, he will serve on the conservative wing for many years to come along with his young colleagues, Alito and Roberts. (Justice Thomas is the elder in the group).
The empty chair will soon be filled, restoring the most powerful branch of the federal government with Justice Kennedy in control.
No one could ever “replace” Antonin Scalia. The mold was broken when he was born. But, someone will soon take Scalia’s place on the court.
I can almost envision Antonin Scalia smiling as he looks down on his successor. Scalia’s final days seemed to have come many years too soon. But, Neil Gorsuch will make the old Italian proud.
I just pray that God will provide him courage and wisdom as our country continues upon its divided and uncertain path.
(Jason Swindle is a criminal-defense attorney and college professor in Carrollton.)