Obama, Scalia and the Politics of a High Court Funeral

Posted February 19, 2016 at 5:54pm
UNITED STATES - FEBRUARY 19: President Barack Obama and First Lady Michelle Obama view a portrait of the late Justice Antonin Scalia as he lies in repose in the Supreme Court, February 19, 2016, ahead of his burial tomorrow. (Photo By Tom Williams/CQ Roll Call)
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.