A Mournful Snub?

As soon as the Politico alerts and text messages announcing Antonin Scalia’s death began resounding across Washington D.C. on a frigid Saturday afternoon, the suffocating shroud of politics was quickly lain his death. That isn’t entirely surprising as right and left are lurching further towards ideological purity in an already riotous presidential race, but it is unfortunate to see the ease with which the conversation moves from mourning to politics with barely a cursory pause for remembrance. However, 2016 is a political year in America, and the death of a conservative icon surely isn’t going to change that.

Now to contribute to the trend with a few words on the politicization of Scalia’s funeral…

After the political earthquake that was Scalia’s death, President Obama’s decision to not attend the funeral might be seen as something of an aftershock, at least as far as conservative media is concerned. Once the news broke that Obama would not be in attendance at Scalia’s memorial service, the reaction from conservative media was sharp and swift. The Fox News punditry was quick to express their outrage and Twitter contributed its usual level of indignation and ire to the conversation. A column on Real Clear Politics ripped Obama’s “shameful” decision while conservative blogs circulated rumors that Obama was planning a round of golf during the funeral. Josh Earnest attempted to downplay the decision to the press, but within hours of his appearance even mainstream media outlets were painting a picture of an administration on the defensive.

To be fair to Obama, there may well be sound reasons for his non-attendance. He and Scalia weren’t close friends, and there’s little doubt that their legal and political worldviews were in continual opposition. Additionally, despite the instant politicization of All Things Scalia after his passing, the funeral will surely be a time for the late justice’s family to mourn their loss. The presence of the president, complete with the necessary security entourage, might be a distraction during a solemn event. Obama will also be visiting the Supreme Court the day before the funeral to pay his respects. In short, there may completely sensible and considerate reasons the president is not attending the service.

On top of that, there is no clear precedent for attending the funerals of deceased justices. George W. Bush eulogized William Rehnquist at his funeral, but Bill Clinton only attended two of the five funerals of Supreme Court Justices who died during his administration (although all were retired at the time of their deaths). Dwight Eisenhower was not in attendance at Robert Jackson’s funeral in 1954 (though he sent a cross made of carnations) but did attend the funeral of Chief Justice Fred Vinson the year before.

With no clear precedent, Obama’s decision is hardly the historic snub that conservative blogs have breathlessly written about. And if Obama had indeed decided to attend, it’s certainly not unthinkable, if not likely, that some on the right would regard it as a political stunt. However, without knowing the particular reasons for Obama’s decision, it’s hard not to wonder if this isn’t a misstep by the White House and a missed chance to strike a non-partisan note in a  hyper-partisan year. Respectfully attending the funeral of a departed conservative icon is unlikely to change the tenor of the political battle that will surround Obama’s nominee to replace Scalia, but it may have been a nice reminder that such gestures are still possible.

Additionally, the decision to not attend Scalia’s funeral, unfairly or not, brings to mind past events that Obama has missed, with the anti-terrorism march in Paris after the Charlie Hebdo attacks standing out as the most noteworthy recent example. Although the justification for these scheduling decisions may be sound (many sources pointed out the Paris march would have been a security nightmare), at times it does seem that the administration is underestimating the symbolic value of these events for many people. Republicans are going to vociferously oppose Obama’s nominee to replace Scalia whether he was at the funeral or not, but showing up with carnations might have been a nice gesture, and given us a brief reprieve from the culture war that Scalia fought so vigorously.

The Prince of Orange Wields His Pen

Over the weekend, John Boehner ascended the venerable soapbox that is CNN.com to make the case for suing President Obama. The title of his op-ed, “Why We Must Sue the President,” reflects the idea that this lawsuit represents some sort of solemn obligation that House Republicans can hardly avoid. While there can be little doubt that Boehner sincerely believes that Obama has overstepped his authority, there is also little doubt that the Speaker knows this case is a political charade. Unfortunately, this latest invented crisis will cost taxpayer money, widen partisan divisions (if that’s possible) and plunge the country into another bitter political controversy.

The specifics of Boehner’s lawsuit are unknown, as his piece offered only vague charges that the President is “creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold.” Presumably, this is a reference to Obama’s use of executive orders, which are frequently cited by conservatives as an example of his tyrannical rule. Executive orders, however, have been widely used by virtually every president since George Washington, and Obama has issued them at a slower pace than any president since Grover Cleveland. Although the constitution does not explicitly mention the executive order, the courts have upheld their use in several cases, and it is an executive power well within the boundaries of American political tradition.

One point Boehner fails to mention is that Obama’s alleged usurpation of legislative power comes at a time when the House has all but sworn off legislative action. Traditionally, the House is supposed to be a functional part of the U.S. government. Under the leadership of Boehner and his unruly Tea Party cadres, the house has continually distinguished itself through its inaction. Boehner to be jealously guarding a power he is determined not to use unless the platform of his party is enacted in uncompromised entirety. Given the fact that 66 million people voted for President Obama and his platform in 2012, this is a rather unreasonable expectation.

Beyond the platitudes about defending the constitution and legislative power, there is little substance in Boehner’s argument, and occasional hints at the political reasons for this measure. After charging that “the President has circumvented the American people and their elected representatives”, Boehner goes on to note that efforts by the House to address this problem have failed to pass the Senate. It seems odd that Boehner is circumventing the democratically-elected representatives in the Senate to sue the democratically-elected president in order to prevent the circumvention of elected representatives. Don’t bother trying to find the logic here, this is a political calculation.