Posted on 02/14/2016 8:03:44 AM PST by crusher
Most of the time when someone famous or important dies, expressions of profound grief on the part of the public are tiresome at best, representing the cultural triumph of sloppy and overwrought sentimentality. Most such deaths, while tragic to friends, family, and loved ones, have no effect whatsoever on the overwhelming majority of those expressing sadness. Their lives will go on unchanged in any way.
The death of Supreme Court Justice Antonin Scalia is an exception to this rule. His passing is a not just a personal or family misfortune, but a full-blown national tragedy. Indeed, Scalia’s death may be the most consequential in-office death of a public servant since JFK was assassinated some 52-plus years ago.
Whether they know it or not, every American has been affected by Antonin Scalia in his three decades on the Supreme Court. And, by extension, every American will be affected by his death and his absence from the Court. He was a conservative giant, the man who, ironically enough, reintroduced the Constitution to Constitutional debate. He was an originalist, a powerful conservative jurist standing athwart history yelling “Stop!†(to coin a phrase). As Ross Douthat puts it in an obit for the New York Times:
Scalia’s combination of brilliance, eloquence and good timing — he was appointed to the court in 1986, a handful of years after the Federalist Society was founded, and with it the conservative legal movement as we know it — ensured that his ideas, originalism in constitutional law and textualism in statutory interpretation, would set the agenda for a serious judicial conservatism and define the worldview that any “living Constitution†liberal needed to wrestle with in order to justify his own position.
Douthat continues, noting that “Scalia’s death in a presidential year promises to be a nightmare for the republic.†Sadly, we think he is soft-selling the likely effect.
In typical Washington fashion, neither of the political parties waited until the body was cold before declaring how they will attempt to use Scalia’s death to their political advantage. Senate Majority Leader Mitch McConnell immediately declared that he wants the NEXT president to have the opportunity to appoint Scalia’s successor, meaning that he does not intend to have the Senate use its advice and consent powers as a CO-EQUAL BRANCH OF GOVERNMENT to approve an Obama nominee. In turn, the White House responded that it doesn’t care what McConnell wants and will submit an appointee for approval as soon as it is able.
From our perspective, it only makes sense that the country would be asked to make a choice regarding Justice Scalia’s replacement next November. If you think that the Democrats should get to replace the arch-conservative hero of individual liberty, then vote for the Democrat. If you think that the narrow 5-4 semi-conservative majority on the Court has served the country well, then vote for the Republican. It strikes us that this is precisely how a constitutional republic should function.
Of course, we suppose we’re a little biased on the point, which is to say that we’re pretty certain that not everyone will agree with us. Still, we imagine that the case can and will be made that allowing the first lame-duck-year Supreme Court appointment in the history of the nation would be a terribly divisive thing to do.
We have a few thoughts on the likely course of events.
Our first expectation is that the U.S. Senate will exercise its right to consent to the President’s appointees and will refuse to provide that consent. Certainly, this appears to be the consensus among Republican leaders at present.
We also expect that the mainstream media – already working hard to ensure a Hillary Clinton victory – will charge the Republicans with obstruction, never mentioning the unprecedented nature of any appointment or the Senate’s constitutional role in the process. In short, we expect that the media will paint the Republicans as the election-year villains – not that anyone should be surprised by this.
We also expect that if GOP leaders flinch and succumb to media pressure, then they will virtually ensure the collapse of their party and the election, come November, of the Democratic nominee. With so many issues now hanging in the balance – from abortion to gun rights; from immigration to environmental rules – Republican leaders cannot afford to screw this one up. If they do, they will simply reinforce the populists’ contention that the Republican Party means nothing and that it should, therefore, be put out of our misery.
Knowing this, our final expectation is that President Obama will make this entire process as difficult as possible for the Republicans. Over his first seven-plus years in office, Obama has been, by far, the most divisive president in history. And there’s no reason to expect him to change course now.
Along those lines, we expect him to make a highly divisive appointment to the Court. Of course, Obama being Obama, his appointment will not only be divisive, but will be cynically clever as well. He will appoint someone whom Republicans can’t afford to confirm but can’t afford not to confirm either. In short, we expect that he will appoint Eric Holder, the former Attorney General of the United States.
Eric Holder is nearly universally despised by conservatives. As Attorney General, he was probably more divisive than even Obama, if that’s possible. No Republican who wants to retain his seat would ever feel comfortable voting in favor of the guy.
At the same time, Holder is a minority. He is a prominent legal figure. He went to the proverbial mat for Obama on countless occasions, demonstrating his loyalty. He is close to the Clintons as well as Obama, meaning that Hillary would approve of the appointment. And best of all, he has already been confirmed by the Senate.
Do Senate Republicans really have the intestinal fortitude to deny a black man a position on the Court, during an election year, when he has already been approved once by Senate? Time will tell.
In the meantime, if you thought the 2016 presidential campaign was ugly, divisive, and destructive already, then you ain’t seen nothing yet.
Who knew I was too optimistic when musing about the eventual demise of the USA? It is here!
We have been hanging on by our fingernails and it was actually Justice Scalias hand to whom those fingernails belonged.
Good article. Thanks.
I look for Obama to nominate Joe Biden. If he does, I don’t think the Republican Senate has the balls the stop him from being confirmed.
The first thing I thought of was that Obama will try to nominate Holder. Good luck with that one.
Holder isn’t likely to be the nominee. R’s can bring up Elian Gonzalez, Fast & Furious, etc., etc. He’d go nowhere & we’d have justification.
It’ll be someone less publicly known, who looks & sounds reasonable, but every bit as deadly to the Republic.
George Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. Rutledge was already an Associate Justice.
New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session.
1795 was the 7th year of Washington's Presidency. There was no "lame duck" back then.
1956 was the end of Eisenhower's first term. Not "lame duck" in the purest sense, unless he chose not to run again like LBJ did in 1968.
The Brennan case might be an example of a path forward. If Obama nominates and the Senate blocks, and then if Obama recess appoints in the December window between the 114th and 115th Congresses, then the next President should not wait for the recess-appointed Justice to step down at the end of 2017 to make his appointment.
The next President should make his permanent nomination early in 2017 and let the Senate confirm. Then, it will be up to the "lame duck" Justice to either succumb to pressure and step down early to let the duly confirmed Justice take over, or defiantly remain on the Court to the bitter end, when the earlier confirmed Justice will then be sworn in.
-PJ
I’ll amend my knee jerk statement to include the Indian.
Republicans should stack the Court like Roosevelt wanted to do.
Congress can change the number of justices on the Supreme Court without a Constitutional amendment. They did it several times in the 1800’s. Maybe it’s time they at least doubled the Court to 18. With more members, it wouldn’t be so dependent on one member to tip it this way or that.
The first nominee will be a black communist transvestite with no law degree ... Then Obama will offer someone a step above and everyone will fall in line.
Could someone post a thread and give a basic explanation of how Harry Reid’s nuclear option will affect the nomination process . . . and does it favor the Republicans?
bookmark
A disaster. 0 gets to appoint another unqualified America-hating leftist and the republicans will just cave.
If parties and circumstances were reversed, does ANYONE think the Republican president would wait until the next term to give their successor (potentially a Democrat) a chance to nominate? Expecting Obama to not nominate a SCOTUS is naive at best.
Lynch might be hoping for the job. She probably followed orders to put the hit on Scalia
Yea, probably the Indian. ;-)
I agree it’s naive, and that Obama will nominate someone.
But we expect that he will appoint someone who is very liberal. Such a nominee will give us five solid Obamabot liberals on the Supreme Court, which is why there’s so much consternation over this.
Another Obama nominee will sharply tilt the court to the left.
We may not have seen the same reaction if one of the liberals on the court had died. Replacing one liberal with another would not have tipped the balance. Replacing Scalia with a liberal does tilt that balance.
With Scalia gone, what would have been 5-4 decisions will be 4-4 and the lower court rulings will stand. Just getting rid of him will work out to be just about as good as replacing him with a leftist.
How convenient for Obama’s execrable legacy the untimely death of a rock-solid constitutionalist.
Republicans need to stop playing defense and play offense.
Use the nuclear option.
Next year with a Republican President and Republican Congress, they should start stacking the Supreme Court with more Justices.
Congress can change the number of justices on the Supreme Court without a Constitutional amendment. They did it several times in the 1800’s. Maybe it’s time they at least doubled the Court to 18. With more members, it wouldn’t be so dependent on one member to tip it this way or that.
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