Among nearly all religious traditions, there exists a deep-seeded custom of honoring the legacy of the deceased.  In the wake of Justice Antonin Scalia’s sudden and untimely passing, both President Obama and the Senate would benefit from keeping this custom in mind as they plot their respective political strategies for dealing with the current vacancy on the U.S. Supreme Court.  Admittedly, we have no way to know for sure where Justice Scalia would land on the issues of nomination and confirmation during this period of divided government.  Still, a close look at Scalia’s legacy, both on and off the Court, provides some clues as to how he might approach the situation.

To start, it seems clear that Justice Scalia would have supported a good faith effort by the president and the Senate to fill the position given the high value he placed on the normal functioning of a fully staffed court.  Illustrative is Justice Scalia’s memorandum denying a motion for recusal in the 2004 duck hunting case, Cheney v. District Court.  In explaining his refusal to recuse himself, Justice Scalia emphasized “the possibility that, by reason of a tie vote” the Court would “find itself unable to resolve the significant legal issue presented by the case.”  If Justice Scalia deemed such an outcome to be unpalatable in a single case, one can only imagine how he would have viewed the consequences of a vacancy reaching across the Court’s entire caseload and into 2017. 

Which is not to say that Justice Scalia would have found the problems arising from a semi-permanent eight-person court so egregious as to justify the confirmation of a nominee he viewed as an unprincipled liberal.  Indeed, it seems safe to say, based upon a 2012 interview Justice Scalia gave to Fox News—where he expressed his dismay at the thought of “be[ing] replaced by someone who immediately sets about undoing what [he] tried to do for 25 years”—that he would not.  At the same time, however, it also seems clear that Justice Scalia, the great lover of debate and open deliberation that he was, would almost surely embrace a hearing on such a jurist—if only to excoriate his or her views in public.  

 But could Justice Scalia ever support the confirmation of a jurist from the other side of the aisle?  It’s not out of the question.  For while Justice Scalia’s decision-making was not immune to the influence of politics, he was by no means the partisan hack that many of his detractors made him out to be.  Indeed, during his tenure on the bench, he cast numerous votes that contradicted his presumed policy preferences.  These seemingly apolitical decisions were based on his abiding commitment to constitutional principles of liberty.  It is at least plausible, then, that a jurist with a similar kind of commitment, even if a Democrat by political orientation, could potentially have received the Justice’s blessing—particularly if that individual had been personally trained by Justice Scalia himself.  

As it turns out, precisely this kind of jurist exists: NYU Law Professor and U.S. Sentencing Commissioner Rachel Barkow.  A former Scalia clerk, Commissioner Barkow—who was unanimously confirmed by the Senate in 2013 for her current post on the U.S. Sentencing Commission—is a nationally renowned expert in criminal law and administrative law, two subject matter areas on which Justice Scalia made his jurisprudential mark.  Perhaps more important than Commissioner Barkow’s overlapping areas of interest and expertise, however, is that her ample paper trail reflects the touchstones of Justice Scalia’s jurisprudence:  “a commitment to the separation of powers, respect for the democratic process, fidelity to the Framers’ constitutional design, careful textualism, and bright line rules of decision,” as Commissioner Barkow herself described them in a tribute to her former boss.

That Commissioner Barkow’s work evidences a deep appreciation for, and commitment to, constitutional principles that transcend political affiliation is perhaps unsurprising given her distinctive background.  Prior to clerking for Justice Scalia, she clerked for another distinguished conservative jurist, the Honorable Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit.  After her Supreme Court clerkship, she spent four years at a prestigious Washington, DC firm representing various business interests, while also spending a year working as a John M. Olin Fellow, a highly competitive position that is traditionally held by legal conservatives.  And for the past five years she has worked with the Manhattan District Attorney’s Office on their Conviction Integrity Policy Advisory Panel. 

Given Commissioner Barkow’s unique combination of expertise, experience, and Scalian tutelage, she would appear to be precisely the kind of Democratic appointee of which her old boss might have approved.  Of course, how strongly this weighs in favor of her nomination to the high court—or, if nominated, a confirmation—is less than clear.  A great many other qualified candidates exist who would increase the diversity of the Court in new ways, while Senate Republicans may decide that confirmation of a Democratic nominee—let alone a hearing—cannot be politically justified under any circumstances.  Even so, the fact that Justice Scalia would likely have approved of a Justice Rachel Barkow should at least place a thumb on the scales of justice.  


Serota is a lawyer and legal commentator.