Posted on February 14, 2016



What Would Scalia Say?

No reason Obama shouldn’t appoint


Daniel Clark



“Elections have consequences.”  President Obama once said that, and yet it’s true.  One might have hoped we’d all have learned it by now.

The consensus among the candidates at the South Carolina Republican Primary Debate was that Obama is somehow obligated to abstain from appointing a successor to the late Supreme Court Justice Antonin Scalia.  Their basis for this argument is that it’s a tradition that a president does not make a Supreme Court appointment during an election year, especially when that appointment would dramatically change the Court’s ideological makeup.

Well, actually, it’s not something that’s not traditionally done so much as it is something that simply doesn’t come up very often.  Whatever the case, the claim has no constitutional basis.  Article II Section 2 says that the president “shall appoint” Supreme Court justices “by and with the Advice and Consent of the Senate.”  This empowers the Senate to reject a particular appointee if it wishes, but it does not allow that body to preemptively deny the president the ability to make an appointment.  The idea that the phrase “shall appoint” could be interpreted as “may appoint, unless otherwise bound by some nebulous political tradition” is the kind of anti-constitutional reasoning that the famously caustic Scalia would regularly lampoon in his dissents.

The Republicans are sounding less like Scalia than they are like Obama, who often invokes imaginary, unwritten contracts to which he subordinates the Constitution.  Surely, most of them know better.  The time to take a stand is not before the president has exercised his constitutional duty to appoint a justice to the Supreme Court, but when the time comes for an up-or-down Senate confirmation vote on a specific appointee.  If that appointee disdains the written law, as liberals tend to do, then the nomination must be defeated.

What conservative senators like Ted Cruz and Marco Rubio understand, however, is that their colleagues lack the will to wage that battle.  They know that any nominee Obama sends them is going to be an affront to the Constitution, but that a certain number of invertebrate GOP Jellyphants will vote for confirmation anyway.  In 2009, the Senate was presented with a video of nominee Sonia Sotomayor openly declaring that it is the role of the judiciary to create law.  Nevertheless, she now sits on the Supreme Court, where she may poison American jurisprudence for decades to come, with the blessing of nine Republican senators.

The Jellyphants are constantly aquiver at the prospect of provoking a government shutdown, an event that has never been known to have any electoral consequences.  They consider Cruz to be a dangerous zealot, just because he promotes legislation that Obama would be inclined to veto.  How much wobblier will they become when faced with an election-year Supreme Court nomination fight?

Not only have they shirked their responsibility to stop Obama’s two previous Supreme Court appointees from being confirmed, but they’ve gone along with, and even praised, his appointments of dangerous left-wing authoritarians like former attorney general Eric Holder, former education secretary Arne Duncan, and “science czar” John Holdren.  If they were unwilling to resist Obama in lower-profile cases like those, they’re not about to invite media criticism by opposing him while the whole nation is watching.

It’s totally understandable that conservatives would want to avoid that scenario, but their assertion that Obama is bound by tradition to thwart his own nomination is constitutionally unsupportable.  Furthermore, it lacks any mechanism to compel the president’s cooperation.  All he has to do is to say no, and appoint a nominee anyway, and he’ll have made the whole field of Republican presidential candidates look like a gaggle of irrelevant pipsqueaks.  What masochists they must be, to have voluntarily given him the power to do that to them.

That the candidates would present this peculiar demand as if it were a defense of Scalia’s principles is sadly ironic.  Scalia was the champion of the judicial philosophy known as originalism, by which the law should be interpreted according to the original intent of its authors.  There is absolutely no evidence that it was our founders’ intent that the president abrogate his responsibility to appoint a justice to the Supreme Court, just because a vacancy has arisen under politically volatile circumstances.

If the Republicans really want to pay their respects to Justice Scalia, they will kindly stop doing the very thing that he had fought against his entire life, which is simply making something up that they wish to be in the law, but isn’t.



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