In the aftermath of the death of Justice Antonin Scalia, Republicans have set upon a strategy for preventing a politically-driven justice from replacing Scalia and turning the Court’s conservative-leftist split into a permanent leftist majority. Their strategy: stating that they will not approve anyone nominated by President Obama. Virtually all the Republican presidential candidates have called on Obama not to nominate anyone to fill Scalia’s vacancy, explaining that he’s in the last year of his tenure and that it would be irregular to try to cram through a lifetime appointment before leaving office. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” said Senate Majority Leader Mitch McConnell (R-KY). Senator Chuck Grassley (R-IA) said, “It’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”
Democrats, of course, said that such a stall would be “unprecedented in recent history…And shameful abdication of our constitutional responsibility.” Those are the words of Senator Harry Reid (D-NV), who cares for the Constitution the way that Cruella de Vil cared about puppies. Senator Patrick Leahy (D-VT) said, “I hope that no one will use this sad news to suggest that the President or the Senate should not perform its constitutional duty. The American people deserve to have a fully functioning Supreme Court.” Senator Chuck Schumer (D-NY) said, “When you go right off the bat and say, ‘I don’t care who he nominates, I am going to oppose him,’ that’s not going to fly.”
Members of the leftist media went even further, suggesting that the Republican opposition to Obama appointing a replacement for Scalia stemmed from racism. Zack Ford of ThinkProgress tweeted:
This is anarchy, insurrection, betrayal, or some combination of all three. https://t.co/J2xtLIJRRu— Zack Ford (@ZackFord) February 15, 2016
Clearly, we should take legal advice from such geniuses.
Brent Staples of The New York Times tweeted, “In a nation built on slavery, white men propose denying the first black president his Constitutional right to name Supreme Court nominee.”
This is stupidity – Democrats have routinely stalled Republican judicial nominees, with Chuck Schumer stating in 2007, “for the rest of this President’s term and if there is another Republican elected with the same selection criteria let me say this: We should reverse the presumption of confirmation…we should not confirm a Supreme Court nominee.” Here’s Reid circa 2008: “In a Presidential election year, it is always very tough for judges.”
Politics makes hypocrites of us all. Conservatives (including me) spent years railing against Democrats filibustering judicial nominees; the last decade has made clear that Democrats are willing to do anything and everything to stack the courts. So this isn't about Obama's timing. This is about ideology.
I, along with other conservatives, don’t care about the procedural niceties any longer – all the tools are now on the table. The right wrongly assumed for decades that the left would not use the federal judiciary as a club against the Constitution. We were wrong. Which means that we should stop worrying about procedure and precedent. This argument isn’t about the timing of an Obama nominee. It’s about the substance of any nominee. We are one vote on the Supreme Court away from gutting the Constitution wholesale. Yes, Obama has the capacity under the Constitution to name a nominee. And yes, the Senate has the right to deny hearings, vote down, or filibuster any of those nominees. They should do all of that to any judge at any level who does not mirror Justice Scalia’s jurisprudential philosophy. And that obligation should extend to all time, not just to Obama’s nominees or his final year. If Hillary Clinton is elected, God forbid, Republicans should continue to stop her nominees at all levels. Those nominees will not and do not reflect the proper role of the judiciary. End of story.
To do any less is a disservice to the Constitution. The founders never believed that judicial review made the Supreme Court the moral arbiter of the land; Alexander Hamilton explicitly rejected that view in Federalist No. 78, when he wrote, if “they should be disposed to exercise WILL instead of JUDGMENT, [that] would prove that there ought to be no judges distinct from” the legislature. Critics of the Constitution objected, correctly, that the Supreme Court could become a tool of tyranny; anti-federalist Robert Yates wrote:
There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.
That is, unless the judges we approve understand what Justice Scalia understood, as he wrote in his dissent in the same-sex marriage case last year:
This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
The Constitution means what it means. Those who are appointed to interpret it are not qadis sitting under trees, handing down the Holy Writ. Leftists only appoint those who believe they get to impose their morality through the judiciary. Conservatives must oppose all such nominees, no matter the time, the place, or the source.