“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
At about 8:45PM last Saturday night, I grabbed my favorite blanket and the remote and sat on the couch to watch the fireworks that were sure to be on display in the rancorous GOP presidential debate. I’d had a wonderful, news-free day out with my wife, and was not really in the mood to watch the debate, but I felt it was my obligation as a citizen, preparing to exercise my constitutional privilege to vote, to listen to each man make the case for their candidacy. I was gratified to watch as, unbidden, my 17, 15, 12, 11, and 6-year old children joined me.
Moments after the candidates had been introduced, the moderator asked his first question, and that was when I first learned of Scalia’s death. It was like a kick to the gut. My eyes opened wide in shock and I let out an audible gasp of dismay, and my eyes watered. Though Clarence Thomas edged out Justice Antonin Scalia as my favorite Supreme Court justice, it is inarguable that Scalia has been the anchor of the conservative wing of the court. His loss is devastating and cannot be overstated. 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 passing also throws a huge curve ball into the political circus that is the presidential election year. Constitutionally, 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 the 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, liberal Democrats are outraged at the thought of Obama not getting his choice confirmed.
My, what short memories they have.
First, let us 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 that “[The President] shall nominate, and, by and with the Advice and Consent of the Senate… [appoint] Judges of the supreme Court…”
Maybe angry liberals, furious at expected GOP “obstruction”, should recall the words of a newly-elected Barack Obama to GOP Minority Whip Eric Cantor when, on January 23, 2009, at the beginning of a meeting to discuss the “stimulus” bill, arrogantly chided Cantor, “Elections have consequences, and at the end of the day, I won.” Considering that Republicans made historic gains in the U.S. House, U.S. Senate, and state governorships and legislatures during the 2010 and 2014 midterms, it would seem that the GOP is 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 filibustered George W. Bush nominee Samuel Alito, and voted against Bush nominee and now Chief Justice John Roberts. In filibustering Alito, Obama declared it incumbent upon the Senate to make “an examination of a judge’s philosophy, ideology, and record”. Furthermore, it was none other than soon-to-be top Senate Democrat Chuck Schumer (D-NY) who, in 2007, a full eighteen months before Bush left office, gave a speech to the liberal American Constitution Society in which he said that “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.”
This doesn’t even get into the history of liberal senators like Chuck Schumer and Ted Kennedy engaging in character assassination of conservative judicial nominees like Robert Bork and Clarence Thomas. Bork was so thoroughly pilloried and slandered that a new term, getting “borked”, was coined to describe the attack. Thomas referred to his confirmation process, which he narrowly passed after being portrayed as a sexual deviant by Democrats, as a “high-tech lynching”.
With a series of 5-4 opinions from the high court in recent years deciding the scope of our 2nd Amendment right to keep and bear arms, the scope of our 1st Amendment rights as pertains to political speech, deciding the legal definition of marriage (and in the process putting our freedoms of religion, speech, and assembly at risk), it is absolutely imperative that the Republicans hold out for a strict constructionist in the mold of Scalia.
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 his own opinions for the will of the people, as embodied in the Constitution and the laws passed by their elected representatives. Though liberals see the judiciary as their ace up the 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.”
Justice Antonin Scalia was a legal giant and, though portrayed as just short of the devil by liberals, 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. The 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 the Constitution.