Replacing Scalia

Feb 15, 2016

When I learned Saturday night that U.S. Supreme Court Justice Antonin Scalia had died, I talked to a number of legal experts who weren’t necessarily in tune with his thinking.

Robert Sedler, a distinguished professor of constitutional law at Wayne State University, spoke of his brilliance.

Federal Judge Avern Cohn called his death “a great loss to the nation,” and said Scalia was “a gigantic intellect whose thoughts had to be answered, whether you agreed with them or not.”

It’s worth noting that neither of these men agreed with Scalia’s interpretations of the Constitution very often.

Geoffrey Fieger, on the other hand, as combative a liberal as Scalia was a conservative, was not charitable. About the only word he said about Scalia that I can say on the radio is “evil.”

Well, I don’t propose to launch into another obituary of the man who was certainly the most controversial justice of our era, but I have been thinking about the process of replacing him.

It does seem sad to me that the one branch of government that was supposed to be essentially non-partisan has become anything but.

I think it disgraceful and against the Constitution itself that some U.S. Senators announced before Scalia’s body was cold that they will not vote to confirm any nominee our elected President might nominate, because they hope to stall the process for a year.


What if their party does win in November? Why should the other party not then try to stall the process for four years?

You can see where that would get us.

President Obama will of course, nominate someone, as he should. I am sure he doesn’t want, need, nor would be inclined to take any advice I could give as to who to appoint, but I am going to say what I think anyway.

I think he’d be well advised to think outside the box, which is lined mainly with federal appellate judges, and consider someone like Michigan Supreme Court Justice Bridget McCormack.

I do in fact know Justice McCormack and her husband, U.S. Energy Department counsel Steven Croley, personally and socially, though I haven’t mentioned this idea to her and she may not be speaking to me now that I’ve said this.

But here’s why I think she’d be an excellent choice. She has by all accounts a brilliant legal mind and real-world experience, as seen in her work as a dean at the University of Michigan law school and founder of the Innocence Project. She would add a federal perspective from the state level.

Also, while she was nominated by the Democrats, she is probably more independent than anything else, and while on the court, has broken down much of the partisan nastiness that existed before. That’s something our entire society could use more of.

McCormack is also young enough -- 49 -- to build a long and productive court career. If the President asked me for a second choice, I’d say, nominate an innovative former state governor – someone like Martin O’Malley, who just dropped out of the Presidential race. O’Malley, it’s true, never has been a judge.

But then neither was another justice and former governor you might have heard of, but who did all right on the court.

His name was Earl Warren.

Jack Lessenberry is Michigan Radio's political analyst. Views expressed in his essays are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.