GOP Should Follow Democrat Precedent for Once
The politics of the Supreme Court vacancy.
“The Constitution is not a living organism. … It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.” —Supreme Court Justice Antonin Scalia
News of Antonin Scalia’s death was like a kick to the gut for conservatives. Scalia long has been the anchor of the conservative wing of the court. He was a champion of “originalism” — the philosophy of interpreting the Constitution according to the intentions of the men who wrote it. His jurisprudential brilliance and his sharp wit were legendary, and even though he spent most of his career on the Court in the minority, he had more influence in the minority than his lesser colleagues had in the majority. Such was the high quality of his legal reasoning.
His loss is devastating and cannot be overstated.
His passing also throws a huge curve ball into the political circus that is the presidential election year. Constitutionally, Barack Obama is well within his powers to nominate another justice to replace Scalia, even if that nominee will inevitably be a far left-wing radical with barely disguised contempt for the Constitution as originally written. After all, it should not be surprising for a radical leftist president to nominate a radical leftist judge who shares his view that the Constitution “reflected the fundamental flaw of this country.”
At Saturday night’s GOP debate, pretty much every Republican frowned on the idea of Obama, with less than a year left in office, nominating another justice, and most said the Senate should block any Obama nominee. Predictably, Democrats are outraged at the thought of Obama not getting his choice confirmed.
What short memories they have.
First, let’s stipulate that Obama does have the power, even the duty some might argue, to nominate a replacement to the Supreme Court. Article II, Section 2, Clause 2, states, “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”
But maybe angry liberals, furious at expected GOP “obstruction,” should recall the words of a newly elected Barack Obama on Jan. 23, 2009, when at the beginning of a meeting to discuss the “stimulus” bill he arrogantly chided GOP Minority Leader Eric Cantor, “Elections have consequences, and at the end of the day, I won.” Considering that Republicans made historic gains in the U.S. House, Senate, and state governorships and legislatures during the 2010 and 2014 midterms, it would seem that Republicans are well within their rights to demand a Supreme Court nominee that is acceptable to them.
Democrats might also do well to note that Senator Barack Obama voted against George W. Bush nominee and now Chief Justice John Roberts — the same man who saved ObamaCare not once but twice — and filibustered Samuel Alito. In doing so, Obama declared it incumbent upon the Senate to make “an examination of a judge’s philosophy, ideology and record.” It’s worth noting that of the 16 presidents who served in the Senate, Obama is the only one who filibustered a Supreme Court nomination. What goes around comes around.
Furthermore, it was none other than soon-to-be top Senate Democrat Chuck Schumer (D-NY) who, in 2007, a full 18 months before Bush left office, gave a speech to the liberal American Constitution Society in which he said, “We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances. … They must prove by actions, not words, that they are in the mainstream rather than we have to prove that they are not.”
And then there’s the sordid history of Democrat senators like Chuck Schumer, Ted Kennedy and Obama’s own vice president, Joe Biden, engaging in vicious character assassination of conservative judicial nominees like Robert Bork and Clarence Thomas.
Democrats are currently pleading that they confirmed Anthony Kennedy in 1988 — also an election year. But they conveniently neglect to mention why that was necessary. Bork, Ronald Reagan’s first choice for the seat, was so thoroughly pilloried and slandered that a new term — “borked” — was coined to describe the attack. Bork was defeated, leaving Reagan to choose Kennedy instead.
And Thomas referred to his confirmation process, which he narrowly passed after Democrats portrayed him as a sexual deviant, as a “high-tech lynching.”
Several 4-4 decisions now loom, leaving bad results in place for Little Sisters of the Poor, Obama’s immigration actions and forced union dues supporting political causes that workers oppose. And with a series of 5-4 opinions from the High Court in recent years deciding the scope of our Second Amendment right to keep and bear arms, our First Amendment rights as pertains to political speech, the legal definition of marriage (and in the process putting our freedoms of religion, speech and assembly at risk), it is absolutely imperative that Republicans hold out for a strict constructionist in the mold of Scalia.
Again, Scalia properly understood the role of the judiciary, and especially the Supreme Court, is to interpret cases based on a strict and literal review of the plain language of the Constitution, rather than break out their judicial electron microscopes and search for manufactured “rights” discovered in the “emanations and penumbras” of the Constitution. Scalia was unerringly true to that philosophy, even when it meant going against his own personal beliefs, as occurred when he upheld burning the American flag as protected free speech (Texas v. Johnson, 1989).
What made Scalia such a wonderful Supreme Court justice was his refusal to supplant the will of the people, as embodied in the Constitution and the laws passed by their elected representatives, with his own preferences. Though leftists see the judiciary as the ace up their sleeve — a way of enforcing their will when they can’t convince their fellow citizens of the rightness of their positions (abortion, marriage) — Scalia was a true believer that those decisions should be left to the people as expressed in the political realm.
In his speech, “Interpreting the Constitution: A View From the High Court,” Scalia made the case for leaving these decisions to the people. He challenged, “You want the death penalty? Persuade your fellow citizens it’s a good idea and enact it. You think it’s a bad idea? Persuade them the other way and repeal it. And you can change your mind. If you repeal it and find there are a lot more murders, you can put it back in. … That’s flexibility.”
Scalia was a legal giant and, though portrayed as just short of the devil by leftists, a good man who quietly lived by his principles, even when he thought no one was looking, which may be why he was able to be “best buddies” with an ideological opposite like Ruth Bader-Ginsberg. Republicans owe it to his memory, and more importantly, to the never-ending battle for the security and sanctity of the Constitution which Scalia spent nearly half a century honoring and defending, to make sure that the next Supreme Court justice shares his respect and reverence for Rule of Law.