With the unexpected passing last month of Justice Antonin Scalia, who died at age 79 while a guest at a remote ranch in southwest Texas, the balance of power on the U.S. Supreme Court is up for grabs — and has suddenly become something of a political football.

With four conservative judges — Samuel Alito, Clarence Thomas, Anthony Kennedy and John Roberts — and four liberal-leaning justices — Sonia Sotomayor, Stephen Breyer, Elena Kagan and Ruth Bader Ginsburg — the person picked to replace Scalia will likely serve as the so-called “swing vote” and could potentially determine the direction of the court for years to come.

While a heated debate rages in Washington as to whether President Obama should pick the next nominee, a similar discussion is happening within the Central Valley legal community.

This week, the Business Journal asked some high-profile Valley lawyers and judges for their thoughts on the Supreme Court controversy.

Jeffrey Purvis, faculty chair at San Joaquin College of Law, said there is “no Constitutional justification for the Senate to announce that it will not consider the President's nominee to the Supreme Court. The leaders of the Senate have said that the ‘people’ should have a voice in the selection of the next Supreme Court justice, but the people have already had their say: by electing the President who nominates and the Senate that confirms.”

Purvis believes the sudden vacancy has laid bare today’s political reality.

“Selecting a Supreme Court justice for his or her political views, hoping that the new Justice will decide cases in conformance with those political views, is a serious violation of the Rule of Law, in my view, and of the theory under which our Constitution should operate,” Purvis added. “But theory is mostly for law professors, and reality is what we are seeing play out in the current presidential primary process.”

Retired Fresno County Superior Court Judge Robert H. Oliver said he believes President Barrack Obama “has the right and obligation to put forth a nominee and the Senate has the obligation to give consideration to the nomination in the normal course of events.”

“It should be noted that the process of appointing federal judges at both the district and circuit level has been slow and according to many observers, unduly politicized under both Republican and Democratic administrations and Senate leadership,” Oliver added. “With that history in mind, this nomination, although to the nation’s highest court, would appear to be subject to the same political processes.”

Fresno County Supervisor Andreas Borgeas agreed.

Borgeas, who is also an attorney and teaches at the San Joaquin College of Law, actually knew Justice Scalia, who co-taught his Constitutional law class while Borgeas was attending Georgetown University.

“Justice Scalia truly was an extraordinary legal mind and figure on the Court,” Borgeas said. “He was such a pivotal conservative vote on an increasingly center-left body and my instincts are telling me a ‘compromise’ candidate is ultimately not going to work for President Obama. Most serious Republican or conservative jurists are likely going to pass on the nomination, like we saw the Nevada governor do.”

Borgeas expects any eventual nominee must run the gauntlet like no other.

“The Constitution doesn’t say when a nomination must occur — or when advice and consent [by the Senate} must occur,” Borgeas said. “Whether or not the Senate completely puts up a wall is still to be determined but I think it’s fairly clear that they are not going to rush. I think what is clear is that given the political cross hairs that exist, anyone who is nominated will essentially have to reveal their political philosophies in a way that has never before been demanded of a judicial candidate.”

Fresno City Council President Paul Caprioglio said he is disappointed the nomination process has already become highly politicized.

Elected in November 2012 to represent District 4 and running unopposed in his bid for re-election this year, Caprioglio is a practicing criminal defense attorney and registered Democrat — although he admits to admiring Republicans’ “fiscal prudence.”

“I think the upside right now is that a nomination by President Obama will get the ball rolling,” Caprioglio said. “The bad news is that a presidential nomination will result in the politics that we have today.”

“In my opinion,” Caprioglio added, “politics doesn’t belong on the Supreme Court. They are there to interpret, enforce, understand and explain various laws that are in conflict. That seems to me to be a noble thing to do — without politics. So how do we remove politics from the nomination process? I don’t have the answer to that question. But I believe constitutional interpretations need to be fairly and equally applied, by virtue of the law and not politics.”
Fresno City Councilmember Esmeralda Soria, a Democrat elected in November 2014 to represent District 1, earned a law degree from UC Davis. Weighing in with her opinion regarding the Supreme Court nomination controversy, Soria said this week, “I’m very disappointed about how politicized this has become. I don’t think there’s any question in terms of the Constitution that President Obama has the right to appoint a justice to replace Antonin Scalia. It’s unfortunate that the Republicans are trying to create roadblocks. I think we should let the process play out. That’s why our Founding Fathers created checks and balances.”

Best known for his controversial rulings on California water cases involving Golden State farmers, environmentalists and urban water users, former U.S. federal court Judge Oliver Wanger, now practicing mediation and arbitration in the Fresno area, said, “Whether or not a nomination occurs, when there is a vacancy, the Constitution provides that the president should nominate to fill the vacancy. But the timing of that nomination is not mandatory. Obviously, the political reality is that in the latter stages of any administration, in past years, there has been somewhat of a slowdown in the confirmation process. Even federal judges have had to go through very elaborate vetting processes.”

“In this case, what you have is at least some members of the opposition party that does not hold the presidency saying this decision should await a new president and a new administration,” Wanger added. “Having spent over 20 years on the federal bench, I truly believe that a judge’s duty is to follow the law without regard to personal or political views. That is obviously what makes our judiciary function effectively — and protects our nation.”

“The president has said that he intends to make a nomination but whether or not the Senate judiciary committee carries out a hearing, nobody knows yet,” Wanger said. “But we do know that the president has the ability to make a recess appointment [when the Senate is not in session]. There have been instances in the past, more than 20 years ago, when this has happened. But right now, there are a lot of moving parts and variables. I don’t think anyone really knows exactly what is going to happen.”

Published on 03/17/2016 - 12:09 pm Written by George Lurie