President Barack Obama has an extraordinary opportunity to nominate his third justice to the U.S. Supreme Court. The sudden death of Associate Justice Antonin Scalia over the weekend profoundly affects the court's balance, as he was the leading conservative on the bench. Agree with him or not �" and we usually didn't �" Scalia was the lead promoter of "originalism" on the court and in right-wing legal circles, meaning he favored a literal interpretation of the Constitution's text at the time it was written coupled with the intent of the Founding Fathers. This is in stark contrast to the belief that it is a living document expanding its interpretation to address the needs of succeeding generations. But this philosophy was really just a sham to justify his retroactive bias, and he used it to promote his anti-gay beliefs under the guise of jurisprudence.
Scalia was a secure vote on the court's 5-4 conservative majority in many cases, including Bush v. Gore, which gave us eight years of George W. Bush. He voted against every gay rights case that came before the court during his 30 years on it.
But his homophobia stood out when he was on the losing end of gay cases. Famously, his dissents, particularly in cases involving LGBT rights such as 2003's Lawrence v. Texas that overturned state sodomy laws, were peppered with anti-gay language. He equated homosexuality with other "behaviors" such as "fornication, bigamy, adultery, adult incest, bestiality, and obscenity." He pushed all the slurs in his dissents that religious conservatives use against us. He was also in the minority in 2015's Obergefell v. Hodges, which legalized same-sex marriage nationwide.
Jon Davidson, legal director at Lambda Legal Defense and Education Network, issued a statement Saturday that noted the "strong disagreements" the organization had with Scalia over the years. But Davidson also noted that Scalia was a defender of important aspects of the Constitution, "especially free speech and against unreasonable search and seizure."
The outrageous things he said about gay people, however, are a stain on his legal career.
The news of Scalia's death from an apparent heart attack Saturday afternoon shook the country. Immediately, Republican Senate leaders and the GOP presidential candidates called for allowing the next president to make the nomination. Obama said in a brief statement Saturday that he intends to nominate a successor soon, and on Tuesday said, "The Constitution is pretty clear about what is supposed to happen now."
Obama's term does not end until January 20, 2017. Until that date, he is the commander in chief, and has an obligation to fulfill the duties of his office. The Constitution is clear that the president has a responsibility to nominate a justice when a vacancy occurs. Given the country's deep polarization, however, it's evident that the Republican-controlled Senate will obstruct anyone the president nominates. Americans concerned about the importance of an independent judiciary should be angry over this blatant political play to deny the president his constitutional duty to nominate a Supreme Court justice. The judicial branch is supposed to serve as a check and balance. The Senate has a constitutional duty to "advise and consent" regarding the president's nominees. It does not have a duty to stonewall and deny an up or down vote.
Republicans are trying to make the case that presidents haven't usually made high court nominations during a presidential election year. That is not accurate. According to Vox.com, six Supreme Court justices have been confirmed during a presidential election year since 1900.
Obama's pick will be one of the most consequential of his presidency. He could go bold, and nominate an out LGBT person. This would add a level of diversity never before seen on the high court. All the cases the justices hear would benefit from the perspective of an LGBT person, just as the current justices' own experiences and background inform their opinions. Despite securing marriage equality last year, our community continues to endure bigotry and discrimination, and other cases that the high court will hear like immigration and access to health care also affect us.
Realistically, however, we suspect that Obama will want a nominee who can be confirmed, and while there are out judges in various courts across the country, it's unlikely one of them will be nominated.
One person who has been mentioned as a potential nominee is Srikanth Srinivasan, who is not gay, but would be the first Indian-American on the Supreme Court. He was confirmed 97-0 for a seat on the D.C. Circuit Court of Appeals in 2013; that would make it difficult for senators to say he's not qualified. He's a former deputy solicitor general (during the Bush and Obama administrations) and was on the team that argued jurisdiction in the Windsor DOMA case. So at least if Obama doesn't nominate a gay person, Srinivasan is someone who's comfortable with us. If he had a problem with gays, he probably wouldn't have taken the Windsor case, which obviously was seen as a positive move for him, professionally. He was nominated to the D.C. circuit not long afterward.
Stalling the nomination could backfire on the Republicans, and already Iowa Senator Charles Grassley, chair of the Senate Judiciary Committee, has backtracked, saying that he has not ruled out hearings on an eventual nominee. We hope that Grassley and other Senate leaders come to their senses and not only agree to hearings, but a vote on whomever the president selects.