Posted on 02/16/2016 11:28:12 AM PST by Kaslin
It is a measure of the stature and the significance of Justice Antonin Scalia that, upon the news of his death at a hunting lodge in Texas, Washington was instantly caught up in an unseemly quarrel over who would succeed him.
But no one can replace Justice Scalia.
He was a giant among jurists. For a third of a century, he led the conservative wing of the high court, creating a new school of judicial thought called "originalism."
But originalism is not conservatism, which, in the judicial era that preceded Scalia, often meant court decisions that "conserved" the radical social revolution Earl Warren's court had imposed upon us.
Scalia believed in going back to the founding documents of the republic and discerning from them the original meaning and intent of the framers.
He would look at the purpose of the authors of the Constitution, the Bill of Rights and post-Civil War amendments, and conclude that it was an absurdity to discover there, or read into them, a constitutional right to have an abortion or to marry someone of the same sex.
The words Scalia used to ridicule such nonsense did as much to discredit majority opinions as did his dissenting votes.
I remember being called into the office of White House Chief of Staff Don Regan, 30 years ago, to be informed that the judge whom Ronald Reagan would name to replace William Rehnquist, who had been named Chief Justice, would be U.S. Appellate Court Judge Antonin Scalia.
Regan was grinning at me as he made the announcement, and I let out of a whoop of victory. Since Nixon days, some of us had argued for naming an Italian Catholic to the high court. Yet, all six of Nixon's nominees, and the only nominee of Gerald Ford, were WASPs.
Scalia's death removes the court's most brilliant mind and most colorful member. Personable, witty, acerbic, a fine writer, he used his opinions, mostly dissents, not only to make his case but to skewer the majority opinion.
And while Sen. Mitch McConnell may be faulted for not waiting a decent interval after Scalia's death to declare that the Senate will not confirm any Obama nominee to succeed Scalia, the majority leader's position is exactly the right one for the party.
Some of us in the Nixon campaign of 1968 still recall how Chief Justice Earl Warren, fearing his old antagonist Richard Nixon might be elected, offered his resignation to LBJ in June of 1968, but contingent on Senate confirmation of a successor. The fix was in.
Johnson nominated Justice Abe Fortas, a crony, to succeed Warren and Judge Homer Thornberry of Texas, another crony, to fill the Fortas seat. Nixon, urged by his old friend William Rogers, Ike's attorney general, stayed out of the battle. Some of us did not.
Senate Republicans, led by Bob Griffin of Michigan and including John Tower, Howard Baker and Strom Thurmond, held up the vote on Fortas, until they had enough support to sustain a filibuster and run out the clock. In October, Fortas threw in the towel.
The following spring, President Nixon named U.S. Appellate Court Judge Warren Burger to succeed Earl Warren as chief justice.
The GOP Senate majority should follow the example of that gutsy Senate Republican minority of half a century ago. The window for any Supreme Court nominees should be slammed shut -- until 2017.
Republicans should tell our "transformative" president that his days of transforming America are over, that he will not be remaking the court into a bastion of the left after his departure, and that, while he has the right to nominate whom he wishes, the U.S. Senate will exercise its right to reject any nominee he sends up. If the court will then face many 4-4 decisions for the next year, so be it.
Given the divisions on the court and balance of power, and the disposition of liberal justices to impose upon the nation an ideology that would never be embraced democratically, the Republican Party is almost duty-bound to oppose any Obama nominee.
What kind of Supreme Court do the American people wish to have? That is a question to be decided in 2016 -- not by a lame-duck president, but by the American electorate in November.
Does the nation want an activist judiciary to remake America into a more liberal society, as Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor would like to see it remade?
Or do the American people want a more constitutional court that returns power to the people and their elected representatives?
Let's have it out.
Republicans should tell the American people that when they vote in November they will be deciding not only the next president, not only which party shall control Congress, they will be deciding what kind of Supreme Court their country should have. Which is as it should be.
If the GOP can't win this argument, they have lost the country.
Latest nightmare scenario going around:
Chair stays vacant until the election. GOP wins the White House but Dems take back the Senate.
New Senate is sworn in Jan. 3. Obama is POTUS until the 20th. He nominates himself to SCOTUS. New Dem Senate leadership scraps the filibuster and confirms him before the new POTUS even takes office.
I’ve had that same nightmare, only it was Moochele who was nominated and confirmed.
I agree. Let the voters decide in the next election.
I don’t think there is any requirement that the SC have nine justices. In fact, I think there were only seven until FDR packed it to make sure it didn’t throw out his New Deal.
The problem is that with the lower courts packed by Obama, a bunch of bad liberal decisions will stand if the Supreme Court is evenly divided.
Absolute nonsense. Obama is no more capable of being part of the Supreme Court than Trump would be. Being one of nine? One among equals? It would be sheer hell. Both have to be the center of attention and Obama wouldn't find that as an associate justice. He'll leave office and then stick his nose into whatever issue catches his fancy.
I don't like the idea of Obama appointing another justice, but the president gets to decide. The American people knew this when they elected him, twice. The idea that we need to wait until the next election is cheap politics, pure and simple.
I understand that the senate gets to advice and consent. I also understand that the court could be unbalanced for years to come. So I would applaud the senate for running out the clock, but not for some lame excuse like stated above.
“Let the voters decide in the next election.”
The GOP will hold the Senate and if Clinton wins the White House, the Senate should refuse to accept any of her nominees to the Supreme Court.
There’s nothing in the constitution that says how many SC Justices there needs to be. That was left up to the Senate to consent.
McConnell will cave and give Obama whatever he wants. He always does.
There were nine seats on the court. The size has been set at nine since 1869.
And if the Republicans win the White House then the Democrats will filibuster any nominee that the president proposes.
Agree 100%. There’s no money in it, and too much actual work is involved. Absolutely no way Obama would want the gig.
Totally agree, but we're assuming they can make this argument clearly and often as they must because the libs and the media will not let this rest.
Absolute nonsense? Have you been paying any attention at all to this man’s hubris over the past eight years?
He fancies himself a “constitutional scholar” after holding an adjunct teaching job in Chicago years ago. I think it’s totally possible.
Well that arrogant pos occupant of 1600 Pennsylvania Ave obviously does think there is.
Yes. He has hubris to burn and when it comes to narcissism then only Trump has him beat, albeit by a wide margin. So you think Obama is willing to be on the minority of any decision? Be out voted by the other judges? Being told that his view of the Constitution is wrong? I don't see that at all. And that's why I think Obama would consider a being an associate justice on the Supreme Court as beneath him. He'd never put up with it.
I don’t see any good coming from this. It is a nice risk but it could easily backfire in so many ways. Our purple state Senators could be kicked out. Ginsberg could leave at the end of the term. Although actually that might be good to have two justices at the same time. Maybe. Who knows. I am sure the Republicans will make it the worse scenario possible for us.
“And if the Republicans win the White House then the Democrats will filibuster any nominee that the president proposes.”
That would be interesting.
We would go years with only 8 or maybe 6 or 7 Justices on the SCOTUS.
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