On Scalia, the Left, and the Constitution

First of all, a tribute to the man, one of the greatest legal minds and defenders of our Constitution of all time, and a passionate patron and defender of the arts. When you have this many liberals mourning your death and praising you as a good man who made them think, even if they vehemently disagreed with you, you must have been doing something right. There are many touching tributes from his former law clerks, as well. He lived a life of consequence and kindness and will be greatly missed.

And now, onto the absurdity on display this week. As we are always reminded whenever anything SCOTUS comes up, there’s nothing the Left is dumber on than American history and the Constitution. President Obama won an election. GOP senators won elections. Obama can nominate whoever he wants to SCOTUS. GOP senators can withhold consent if they want. The end. The Senate doesn’t even have to hold a vote if they don’t want to. This is how it works, as Senator Obama well knows. If Cruz is POTUS, Dems hold the Senate, and Ginsburg dies in the last year of Cruz’s presidency, you’ll die to prevent him from appointing her successor. So shut the fuck up already, Dems. This is how it works and you know it. Stop playing dumb. History did not begin in 2008. Read the Constitution. Obama has the right to veto bills for any reason or no reason, and the Senate has the right to veto all his nominees. This is checks and balances 101. You were supposed to have learned this in 5th grade. The process used to be much less politically charged back when the government – and therefore the Court – wasn’t so involved in our lives. But Democrats have expanded government into every aspect of our lives and relentlessly politicized the judicial appointment process over the last quarter century, so here we are. Payback is a bitch.

Sadly, as David Harsanyi notes, precedent only matters to Dems sporadically.

Democrats were uninterested in historical guidance when they were shoehorning a massive generational reform through Congress without any consensus for the first time in history or filling imaginary recess appointments.

Kevin Williamson correctly writes, these are your rules, Democrats. And now the other side is going to play by them too.

Jim Geraghty is right to point out that Republicans need make no argument other than the ones Democrats such as Charles Schumer were making at the end of the Bush years. They need do nothing more than Senator Barack Obama did in filibustering Sam Alito. There are plenty of other examples. The ur-example, of course, is the case of Robert Bork. The Democrats’ craven, despicable, lying campaign against Bork announced the arrival of Supreme Court confirmation hearings as bare-knuckle political brawls. There was no question that Bork was well-qualified for the position – he was one of the great legal minds of his time. Democrats simply did not like his view of the law and the Constitution.

Bork’s “ideology,” like Scalia’s, consisted of a belief that the law saws what it says and nothing more. Scalia often is described as a “conservative,” but he was a “conservative” who sided with flag-burners, because that’s what the law demands, and with various and sundry unattractive criminal defendants, because the law was on their side, too. He treated the First Amendment the way he treated the Second: as a series of words with a particular meaning.

The Kagans, Sotomayors, and Ginsburgs of the world operate under no such restraints…The belief that the Constitution says whatever it is that Democrats want it to say at any given moment is illegitimate as a legal philosophy for Supreme Court justices. Democrats long ago established that ideological disagreement is a perfectly valid reason for blocking a Supreme Court appointee. Senator Schumer spelled out the political case for preventing a lame-duck president from filling a vacancy. Senator Obama demonstrated the technique. Your rules, gentlemen. Your rules.

Pascal-Emmanuel Gobry expounds on the Left’s hypocrisy and Constitutional illiteracy here:

But conservatives have a long memory and one reason why they’re playing the world’s smallest violins to Democrats’ complaints about fair process when it comes to judicial appointments is because this whole acrimonious vendetta process started in 1987 — with Reagan’s nomination of Robert Bork to fill a Supreme Court seat — when Democrats orchestrated an unprecedented smear campaign against a respected constitutional scholar…The demagoguery was so intense that it became a verb, “borking,” to intentionally and maliciously destroy the character of a nominee for political reasons. And it’s the borking precedent that has made the Supreme Court appointment process so broken. So conservatives have no patience with progressive crocodile tears about constitutional process and playing politics…Here’s the reality of the issue: The Republicans want one thing, and the Democrats want another. And so they are having a political fight about it. And because this is an issue on which the stakes are extremely high, Republicans are willing to fight very hard. And so are Democrats. And so they are fighting. There’s nothing about that that’s against the Constitution. In fact, it’s the opposite: It’s precisely what the Constitution encourages.

David French explains why Republicans – as a party – would be foolish to give up this fight:

Each senator swears that he or she will not only “support and defend” the Constitution, but that they’ll “bear true faith and allegiance to the same.” Voting to confirm any nominee who will likely affirm and advance our nation’s dangerous, post-constitutional drift is a violation of that oath. Each branch of government is tasked with defending our Constitution, and it is past time for Senate Republicans to step up…In fact, the conservative argument for waiting until after the next election is painfully easy to make. A child could counter leftist talking points with one name — Robert Bork. In 1987, the Democratic party crossed the Rubicon when they not only rejected a highly qualified conservative Supreme Court nominee, they did so in the most shameful way possible — through an avalanche of lies and character assassination…The Democrats have proven that they will not only reject a judicial nominee on the basis of politics, but that they’ll lie relentlessly to do so. They still look back on Bork’s nomination battle as a triumph of the progressive movement. A Republican party that cannot use that precedent to justify a far-more-temperate response to an Obama appointee is a party that’s lost any shred of political competence.

In this battle, Republicans have the Senate majority, the lockstep support of an energized base, the Constitution, and the better political argument. If the GOP can’t hold the line under those circumstances, then its Senate majority will be the least of its concerns. The GOP coalition — already strained to the breaking point by Donald Trump’s challenge — may well shatter apart. The GOP as we know it could cease to exist, killed not by electoral defeats but by its own cowardice and incompetence. Fight well, GOP. Your institutional life is at stake.

Here are five reasons Republicans shouldn’t fear a SCOTUS fight; here’s an analysis of why the GOP can and should prevent Obama from replacing Scalia; Ross Douthat makes an important point in his piece, “The War After Scalia”:

This is plausible-enough in a historical vacuum, but it collapses if you understand how conservatives regard their experience with Supreme Court nominees. Since 1968, the year that the modern right-of-center political majority was born, Republican presidents have made twelve appointments to the Supreme Court; Democratic presidents have made just four. Yet those twelve Republican appointments, while they did push the court rightward, never delivered the kind of solid 6-3 or 7-2 conservative majority that one might have expected to emerge. Instead, John Paul Stevens, David Souter and Harry Blackmun all went on to become outspoken liberals, Blackmun and Anthony Kennedy went on to author decisions sweeping away the nation’s abortion laws and redefining marriage, Sandra Day O’Connor and Kennedy both ratified Roe v. Wade — and so on down a longer list of disappointments and betrayals.

Meanwhile, none of the four recent Democratic appointees, whether “moderate” or liberal, have moved meaningfully rightward during their tenures…So telling Republicans that they should accept a moderate liberal lest they risk a real liberal is likely to inspire a bitter chuckle, since from the perspective of conservatives they risk at least a moderate liberal in practically every appointment anyway…And if you’re starting from that kind of disadvantage, you simply can’t afford to throw away even a chance at appointing a real conservative in the name of a play-it-safe compromise: If there’s one thing conservatives have learned from forty years of judicial appointment battles, it’s that when you compromise, you lose.

Shannen Coffin improves on Douthat’s point about the myth of the ‘consensus’ candidate:

Taken for granted in the liberal–conservative split on the Court is that the liberals do not generally fracture. On the most controversial cases, they are one…Another reliable liberal would move the Court solidly into the liberal camp. No longer would there be a question of whether a swing justice would break with the liberals or conservatives on the Court. Instead, the wish list of Democratic decisions — overturning the individual right to bear arms, regulating political speech, redefining property rights — would all be realized. And that is what this fight is all about.

President Obama is not interested in appointing a candidate who would be “gettable” by conservatives in any given case. The president wants to appoint only someone who would appear that way for purposes of the Senate confirmation process. Rather than Goldilocks, we’d get instead the Big Bad Wolf in sheep’s clothing. United Republican opposition should not come as a surprise in this case. Whoever the nominee is, he or she will not, by the president’s design, be acceptable to those devoted to the Constitution and the rule of law. The objective here is to make the Court a dependable supporter of the Democratic policy agenda for the next generation and beyond. Goldilocks is a fairy tale.

Let’s finish with this fantastic Kevin Williamson piece:

At its best, the Supreme Court functions precisely as it was intended: as an antidemocratic brake on popular legislative and presidential passions when those passions do violence to the law, the Constitution, and the Bill of Rights. At its worst — and it often has been at its worst of late — it functions like Iran’s Guardian Council, a collection of black-robed faqihs and jurists that sits above and outside the political process, using its position and privilege to impose on the nation a narrow set of social values decocted from the political ether. With the death of Antonin Scalia and the prospect of replacing him, we are faced once again with the question: Does the law mean what it says, or does it mean whatever people with power want it to mean at any given moment?

The habitual labeling of Scalia as a “conservative,” as though he were simply using the Court to do what Jeff Sessions does in the Senate or Ken Buck does in the House, is a libel. As opposed to the outcome-oriented, decision-first/reasoning-afterward approach of the Court’s Alice in Wonderland progressives, Scalia often reached decisions that annoyed conservative political activists — because the law demanded it. The Left complains that Scalia was an unthinking “fundamentalist” on the Second Amendment, without taking a moment to consider that he approached the First Amendment in precisely the same way. When conservative legislators wanted to abridge free-speech protections by passing a statute against flag burning, it was Scalia who stood in the way. Likewise, conservatives who were inclined to ride roughshod over the rights of criminal defendants and Americans deemed “enemy combatants” by the president often ran into the brick wall of Scalia’s jurisprudence. Not because criminals and jihadists had a friend in Scalia, but because they have a friend in the law, to which he was committed.

The discussion surrounding Scalia and the fight over his replacement treats Scalia’s philosophy — that the law says what it means and means what it says — as though it were exotic, or as if it were a quaint relic of some simpler age. But what is the alternative? The alternative is to make the Supreme Court a nine-person mob in a mob-rule society. We already are dangerously close to that point. No thinking person doubts that Ginsburg, Kagan, Sotomayor, and Breyer will find a way to produce the outcome that the Left desires in any important case.

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Filed under Politics, The Constitution, The Left

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