I gave remarks on the floor of the House of Delegates. The prepared text is below and is followed by a video of my remarks.
TOSCANO STATEMENT (AS PREPARED) ON DEATH OF ANTONIN SCALIA AND FAILURE TO CONFIRM JANE ROUSH – FEBRUARY 17, 2016
Mr. Speaker, Ladies and Gentlemen of the House.
This past weekend, we lost two Supreme Court Justices, one due to events over which we have no control the death of Antonin Scalia – and the other one due to factors over which we have much more control, the failure to approve Justice Jane Roush to sit on our Supreme Court.
Say what you want about his politics, Antonin Scalia was nonetheless a man of engaging personality and towering intellect. He was the first Italian American to be placed on the Supreme Court and he made his mark. Some of us got to know a little about him while he was a University of Virginia faculty member and resided in Charlottesville, but the true force of his conservative ideals did not emerge until his later appointments. His passing leaves a vacancy and in the U.S. Constitution – yes, the U.S. Constitution, says “the President shall nominate…” another Justice.
Scalia was nominated by President Ronald Reagan in 1986 and unanimously confirmed. We certainly did things differently back then! It took about thirty days from the time hearings commenced on Scalia’s nomination until his confirmation. As of this date, we have about 340 days until a new President takes office to succeed President Obama, and yet, within minutes of Scalia’s passing, Republicans in the Senate were stating that there was no way they would approve any nominee of this President. Any nominee? Senate Majority Leader, Mitch McConnell, even said that we need to let the public have a voice in the decision and that we should wait until the next President is installed until any nominations are even made. Again, that is 340 days away. 340 days for cases to pile up before the court. 340 days for critical decisions to be ignored and avoided. 340 days during which Republicans in the Senate can attempt to dictate to the rest of the country how justice shall be served.
Justice Scalia, the jurist perhaps most closely associated with literal and plain meaning interpretations of the Constitution should be screaming. Article II Section 2, Clause 2 of the Constitution says “the President shall nominate…”. It does not say “the next President”, “the future President”, or “a Republican President”. It says the President, and Barack Obama will be President for over ten months. The failure to acknowledge that clause in the Constitution is yet another example of how Republicans simply avoid an interpretation of that document which is not in sync with their political ideology, and drives us further down the road of politicization in the judicial selection process and the judiciary.
Very similar things are happening in Virginia. In our Commonwealth, we talk a lot about the Virginia way, but, with our failure to retain an eminently qualified Justice of the Supreme Court, Jane Roush, we are beginning to lose our way. No one has questioned her qualifications. And she has been sitting on the Court for seven months. The failure to retain her, or even to interview her in the Senate, means that she has been essentially fired for no reason other than Governor McAuliffe was exercising his right under our Constitution to make a recess appointment. Yes, again, the Constitution says that the Governor has the ability to make a recess appointment and the Legislature should then act to confirm that appointment when the session reconvenes.
In Virginia, we have typically ratified gubernatorial appoints. In fact, there have been thirty-one consecutive appointments made by the Governor and then approved by the Legislature. And no sitting Supreme Court Justice has been fired for over one hundred fifteen years. One has to wonder about the extent to which Potomac Fever has been moved down I95 to the Capitol in Richmond.
Two weeks ago, the House Courts of Justice Committee even unanimously approved of Justice Roush as being qualified to serve on the court. In response, how did the Republican-controlled Senate respond? Deafening silence!