Supreme Court Justice Antonin Scalia has died at age 79, according to multiple news reports.
Scalia, a Reagan appointee, joined the court in September 1986 after having served on the United States Court of Appeals for the District of Columbia Circuit, which has jurisdiction over FCC court challenges. He was also counsel to the Office of Telecommunications Policy in the Nixon White House in 1971–1972.
His death will leave the court with an even eight justices and missing one of its most consistent conservatives.
It is possible that the court could remain at eight until a new President is elected. It would also remove a Justice that net neutrality fans felt was a friend.
A tie means a lower court decision is not overturned, although it has no value as precedent, said a veteran appeals court attorney.
As to its impact on media or telecom cases, he said it could be important if or when network neutrality gets to the court. "Scalia dissented in the Brand X case and strongly [believed] that the FCC has authority to treat telecom as a Title II service. For those of us who support network neutrality, he was our best friend on the court."
Brand X was the Supreme Court's 2005 decision upholding the FCC's decision declaring cable modem service an unregulated “interstate information service" exempt from open access requirements rather than bound by a lower court ruling that it is a “telecommunications service” subject to telephone-style access regulations. He wrote the dissent, famously using the pizza delivery metaphor and declaring flatly: "“After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is ‘offering’ telecommunications. For that simple reason set forth in the statute, I would affirm the Court of Appeals.”
Scalia has also been one of the most vocal opponents of cameras in the courtroom. Although he supported televising oral arguments when he joined the court, Scalia later said he had concluded that TV would turn court proceedings into unhelpful, uncharacteristic sound bites.
Scalia was in the minority of judges that dissented from the decision that Aereo was more like a cable company than the mere access-to-equipment (remote antennas) provider it claimed to be, a decision that led to the folding of Aereo, much to the relief of broadcasters who had sued.
The 2016 presidential election was already being billed as about the Supreme Court given the number of octogenarians that would be on the court when a new President was elected. Now there will be at least one vacancy on the High Court for either this or the next President to choose. Senate Republicans are likely to delay the nomination in hopes of a Republican President.
For his part, the President said he was going to pick a nominee and expected the Congress to do its job.
"I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our Founders envisioned."
One name being floated as a possible successor was Judge Sri Srinivasan, a member of the D.C. Circuit who sat on the three-judge panel that heard the net neutrality rule challenge in December.
Senator Chuck Grassley, Chairman of the Senate Judiciary Committee--which conducts the nomination hearings for Supreme court nominees—called Scalia “an intellectual giant. His originalist interpretation of the Constitution set the standard for the court. He had an unwavering dedication to the founding document that has guided our country for nearly 230 years. His humor, devotion to the Constitution and quick wit will be remembered for years to come."
Grassley suggested his successor would not be tapped until the election was decided.
“The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year," he said. "Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”
Moveon.org said the President should pick a successor and Congress should not drag its feet.
“Americans everywhere are sending their condolences tonight to the friends and family of Justice Antonin Scalia, who defined an era of conservative jurisprudence on the Supreme Court," said MoveOn.org civic action executive director Anna Galland. “Now it is time to follow the requirements of Article II of the Constitution, which gives the president the sole power to, with the advice and consent of the Senate, appoint a new Supreme Court justice," she said.
“Senator [Mitch] McConnell [Kentucky Republican Senate Majority Leader] should retract his shameful, partisan suggestion that the Senate abdicate this constitutional responsibility. All senators must play their role under the Constitution to ensure the confirmation of a highly qualified nominee.”
McConnell reportedly said Saturday that the Senate should wait for a new President before choosing a replacement.
The Republican candidates debating on CBS Saturday night joined in a moment of silence in honor of Justice Scalia, after which they were generally in agreement that a succesor should not be named in an election year.
Late Saturday, the President and Vice President weighed in on Scalia's passing.
The President's statement
"Good evening, everybody. For almost 30 years, Justice Antonin “Nino” Scalia was a larger-than-life presence on the bench -- a brilliant legal mind with an energetic style, incisive wit, and colorful opinions.
"He influenced a generation of judges, lawyers, and students, and profoundly shaped the legal landscape. He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law. Tonight, we honor his extraordinary service to our nation and remember one of the towering legal figures of our time.
"Antonin Scalia was born in Trenton, New Jersey to an Italian immigrant family. After graduating from Georgetown University and Harvard Law School, he worked at a law firm and taught law before entering a life of public service. He rose from Assistant Attorney General for the Office of Legal Counsel to Judge on the D.C. Circuit Court, to Associate Justice of the Supreme Court.
"A devout Catholic, he was the proud father of nine children and grandfather to many loving grandchildren. Justice Scalia was both an avid hunter and an opera lover -- a passion for music that he shared with his dear colleague and friend, Justice Ruth Bader Ginsberg. Michelle and I were proud to welcome him to the White House, including in 2012 for a State Dinner for Prime Minister David Cameron. And tonight, we join his fellow justices in mourning this remarkable man.
Obviously, today is a time to remember Justice Scalia’s legacy. I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our Founders envisioned.
But at this moment, we most of all want to think about his family, and Michelle and I join the nation in sending our deepest sympathies to Justice Scalia’s wife, Maureen, and their loving family -- a beautiful symbol of a life well lived.
We thank them for sharing Justice Scalia with our country.
"God bless them all, and God bless the United States of America."
The Vice President's statement
"Jill and I send our deepest condolences to Maureen and the entire Scalia family on the loss of their beloved husband, father, and grandfather.
"Justice Scalia and I had fundamental disagreements about how the Supreme Court interprets the Constitution, but we shared a belief that sharp debates, tough questions, and deep respect for the adversarial process was an essential part of our judicial system and our democracy. That’s how our rule of law—forged with the deep principles and convictions of justices, and laid out in majority decisions and minority dissents—becomes the model for the world.
"For the country, Justice Scalia will be remembered as one of our most influential justices, who inspired and challenged generations of students, clerks, lawyers, and judges. And for so many, he will be remembered as a mentor, dear friend, and a man devoted to his faith and his family, who will miss him most of all, and who we will keep in our prayers."
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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