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Obama, Scalia and the Politics of a High Court Funeral

Obama and first lady Michelle Obama look at a portrait of Scalia as they pay their respects on Friday. (Tom Williams/CQ Roll Call)

President Barack Obama is taking fire from friends and foes alike for skipping Supreme Court Justice Antonin Scalia’s funeral. But even some with ties to Scalia believe he is right in bowing out.  

The president and first lady Michelle Obama on Friday afternoon made the 2 1/2-mile trek from the White House to the Supreme Court, where the 79-year-old conservative justice’s body laid in repose. But rather than also attending Scalia’s funeral on Saturday morning, Obama is dispatching Vice President Joseph R. Biden Jr.  

Barbara Perry, presidential studies director at the University of Virginia’s Miller Center, believes Scalia would not have wanted any president to attend.  

“The announcement on the Supreme Court’s website said the mass is for 'friends and family members ,'” said Perry, who got to know Scalia as a high court fellow. “And President Obama does not fit into either of those categories.  

Perry does not believe Obama is missing an opportunity to extend an olive branch to Republicans and help ease the bitter partisanship that has plagued his tenure. “I don’t think it’s a political statement,” she said. “I think the decision was one made of out respect.  

“And Justice Scalia was a private person. It was only in recent years that he started doing some media appearances,” Perry said Friday by phone on her way to Washington for the funeral service. “He wouldn’t have wanted the huge spectacle that it would have been if the president attended,”  

She also recalled her attendance at Justice William Brennan’s funeral, saying security was tight due to Clinton’s attendance: “I can remember going through the metal detectors -- my pepper spray was confiscated.”  

Ed Whalen, a former Scalia law clerk who now is president of the Ethics and Public Policy Center, declined an interview Friday but told told The New York Times  he believes Obama made the right decision.  

White House officials were quick to note that since news broke of Scalia’s death Saturday evening, the president has twice praised his service to the country and legal intellect.  

“Obviously, Justice Scalia and I had different political orientations and probably would have disagreed on the outcome of certain cases,” Obama said Tuesday. “But there is no doubt that he was a giant on the Supreme Court, helped to shape the legal landscape.  

“He was, by all accounts, a good friend and loved his family deeply,” he said. “And so, you know, it's important, before we rush into all the politics of this, to take stock of somebody who made enormous contributions to the United States, and we are grateful not only for his service, but for his family's service.”  

But it was fewer than 24 hours before those very politics confronted Obama.  

On Wednesday, White House Press Secretary Josh Earnest announced that the first couple would skip the funeral. He described Obama’s appearance beside Scalia’s American flag-draped casket as “an opportunity for the individual who is serving as the president of the United States to offer respect to someone who served in the third branch of government.”  

Perry called the Obama's trip to the Supreme Court "the perfect compromise."  

That explanation was not good enough for some Obama supporters and critics alike.  

"We’ve got 11 more months of watching damage to this country from a lawless and faithless president, who is eager to travel to Cuba but unwilling even to show up at the funeral of Justice Scalia," said Sen. Ted Cruz of Texas, a Republican presidential contender.  

The Cruz campaign announced Thursday he will take a break from the presidential campaign trail Saturday to attend Scalia’s funeral. As of Friday afternoon, however, the funeral seemed more of a talking point for Republicans — no other GOP White House hopeful had announced an intention to attend.  

Obama’s former “car czar,” Steve Rattner, took to Twitter to say Obama’s plans would do little to remedy Washington’s toxic political environment. “If we want to reduce partisanship, we can start by honoring great public servants who we disagree with,” Rattner tweeted.  

https://twitter.com/SteveRattner/status/700062161549336576  

Chris Hayes, a MSNBC host who also is an editor at large of the left-leaning The Nation magazine, tweeted some advice from mother: "If you're wondering whether you should go to the funeral, you should go to the funeral."  

https://twitter.com/chrislhayes/status/700051201644175360  

Conservative media outlets and talk radio hosts skewered Obama’s decision.  

The hubbub over the president's decision comes as he is trying to cajole the Republican-led Senate into even taking up the eventual nominee he will submit, likely next month.  

Obama on Thursday and Friday spoke by telephone with key senators about just that. Obama chatted with Senate Majority Leader Mitch McConnell, R-Ky., Minority Leader Harry Reid, D-Nev., as well as the chairman and ranking member of the Senate Judiciary Committee, Charles E. Grassley, R-Iowa, and Patrick Leahy, D-Vt.  

A Grassley spokeswoman described the conversation with President Barack Obama as, "very cordial," noting that it took place around lunchtime Friday.  

McConnell's office said that call simply reiterated the president's public statements that he intends to send up a nominee for the vacancy created by Associate Justice Antonin Scalia's death.  

Reid and Leahy aides said those senior senators had spoken with the president, but neither provided additional details. The call with Reid took place Thursday, according to a spokeswoman.  

The White House on Friday offered up a little advice for those and other senators.  

Members should not judge the coming Supreme Court nominee on the basis of "whether or not they would have picked them," Earnest said. Rather, the criteria senators should apply is whether the nominee could "serve with honor and distinction for the rest of their lives," he told reporters.  

Earnest defended Obama on Thursday, accusing some of the critics of merely trying to score political points.  

“There's so much rancor and politics and partisanship that we allow ourselves to get drawn into different corners to the extent that some people actually want to use the funeral of the Supreme Court justice as some sort of political cudgel,” Earnest said. “The president doesn't think that that's appropriate.”  

He pointed out that it was Biden, not Obama, who had a “personal relationship” with the late justice. Earnest also cited as a reason that Biden’s security detail is “at least a little bit lighter” than Obama’s.  

With an unseasonably warm sunny day forecast for Washington on Saturday, one reporter asked Earnest on Thursday if Obama — who has acknowledged being, at times, weak on optics — planned to play golf that day. The White House spokesman replied that he did not yet know Obama’s weekend plans.  

There is precedent for chief executives to skip Supreme Court funerals. And there is even precedent for both a sitting president and vice president to do so.  

Four of the last seven high court justice funerals featured either a president or vice president in attendance, NBC News noted this week.  

The last Supreme Court jurist to pass away was Chief Justice William Rehnquist in 2005. Then-President George W. Bush attended. Former President Bill Clinton dispatched former Vice President Al Gore to Justice Thurgood Marshall’s funeral in 1993.  

Niels Lesniewski contributed to this report. Contact Bennett at johnbennett@cqrollcall.com and follow him on Twitter at @BennettJohnT. Related: Washington Pays Respects to Justice Scalia See photos, follies, HOH Hits and Misses and more at Roll Call's new video site. NEW! Download the Roll Call app for the best coverage of people, politics and personalities of Capitol Hill.