The untimely death of U.S. Supreme Court Judge Antonin N. Scalia has more quickly transfixed America’s political discussion than any other issue in recent memory. Admittedly, there is the unseemly side of such discourse, including the salivating by many on America’s political left who (adopting Rahm Emanuel’s oft quoted inspiration – “never let a serious crisis go to waste”) believe that Scalia’s death presents a glorious opportunity to cement President Obama’s globalist and leftist political legacy for decades to come. They are not wrong in their appraisal. It is also not a stretch to imagine that many of these same individuals have already created lists of recent Supreme Court rulings that should be quickly reversed – Citizens United chief among them in this political season.
For its part, in a “Reagan-less” world, America’s conservative right is caught between genuine grief over having lost its brilliant standard bearer, its fearless protector of individual liberty and originalist constitutional interpretation, and the seemingly immediate desire to cut President Obama off at the pass in relation to filling this unexpected vacancy. No less than all six GOP presidential candidates who remain in this year’s primary race echoed their collective, early stated support of Senate majority leader, Mitch McConnell (R-KY), and Senate Judiciary Committee Chairman, Charles Grassley (R-IA), in their stated positions that President Obama should refrain from making any nomination to fill this vacancy in an election year.
Yet, despite the uncomfortable feeling that such early political maneuvering gives those who are more simply captured by the loss of perhaps the greatest conservative jurist in this country’s history, one can’t help that Justice Scalia himself would consider much of this argument as unnecessary. In fact, I suspect that Justice Scalia would permit himself a hearty chuckle at the political handwringing that has occupied most of the last 24 hours inside and outside Washington, D.C., thinking it largely a non-issue.
It’s a simple resolution — but one that requires backbone and not one without consequence. The question isn’t as much whether it can be done, but whether those Republicans engaged in this constitutional dance are willing to accept the consequences of their actions in defense of the Republic.
President Obama has the authority and constitutional obligation to nominate a replacement to fill the vacancy. He should nominate a prospective justice to serve to fill the Scalia seat on the Court. Let’s be honest. GOP pleas to the contrary have far more to do with the desire to avoid the fight than any historical precedent that we may claim supports such position.
Likewise, any GOP insistence that this nomination, if made, be a consensus pick is an equally silly and fruitless exercise — as if a consensus nominee should move conservatives, anyway? It won’t be a “consensus nominee.” Not close. It will be a nominee that is virtually guaranteed to move forward the Obama agenda well into the 21st century. In many respects, this vacancy creates far greater opportunities for the White House, than either the Clinton or Sanders’ presidential candidacies, to cement President Obama’s broad globalist vision, where America is eventually and invariably rendered a mere and unexceptional cog in the wheel of universal multiculturalism.
For conservatives’ part, we should expect no less from President Obama. He is a formidable adversary. And, we should respond in kind. The U.S. Senate, theoretically led by conservative Republican leadership, has the constitutional obligation to grant or withhold its consent to any president’s nominations for the federal bench. The U.S. Senate should consider President Obama’s nominated individual to fill this vacancy and, within its rules, should refuse consent to the nomination.
This latest nomination will be qualitatively different than the nominations of either Justice Kagan or Justice Sotomayor, not because the nominee will be more liberal than either of those two previous nominees, but because of the perspective that time has permitted us on the Obama presidency. For all of the criticism leveled at presidential candidate, Senator Marco Rubio (R-FL), over his oft-stated commentary that President Obama knows exactly what he is doing — to wit, that there isn’t an aspect to Obama’s personal leadership style and his abrogation of congressional consultation in deference to unilateral executive action that isn’t planned and purposeful — I submit that Rubio is 100% correct. If Americans didn’t know this before, we certainly know this now.
And, unless we heed such warning and maintain the necessary vigilance that only such awareness can shape in our conservative opposition to his initiatives, President Obama will conclude this last year with such breathtaking progressive aplomb that even conservatives will reflect on his temerity in awe. Of course, an historical arrow in our quiver, used to fight such rampant reconstruction of America, has been our putative 5-4 conservative majority on the Supreme Court. This arrow is now gone.
The U.S. Senate can either act to restore that protection or it can roll over and let President Obama complete his radicalization of America. A 5-4 liberal majority on the Supreme Court will make Obama’s vision of America something that dictates our grandchildren’s and great-grandchildren’s lives 75 years from now and beyond.
Not since the election of 1864, pitting candidates of starkly differing views on the necessity of abolishing slavery in a post-Civil War America, has America faced such a time of diametric opposites on the notions of individual liberty. In a post-Obama world, America is either going to be restored as a land of liberty, where individual rights are paramount and where government’s excesses are routinely curbed by an aware and vigilant citizenry; or it will be a land of growing government intervention, of a creeping governmental paternalism that supplants individual liberty with levels of intrusiveness that render American freedom nothing but a faint memory.
Conservatives, of course, have been let down time and again by reposing too much faith in the current GOP leadership. This leadership has found repeated ways of continually placating an overreaching president, all for the sake of preserving a fictional political comity and bi-annual electoral success. And, so if past is prologue, we are right to be wary of any promises made by either Senator McConnell and Senator Grassley on any issue, let alone one as significant as a Supreme Court vacancy.
Senators McConnell and Grassley must know — as in they should inform themselves — that rejection of the president’s nominee will likely carry political consequence for the many members of the GOP Senate caucus running for reelection this year. However, I can assure both senators that a failure to reject the nominee(s) will carry with it far greater political hardship for the GOP. Conservatives will leave the GOP ship for good, rendering the GOP a minority party nationally well into the 21st century.
Indeed, it is time for Senators McConnell and Grassley and their 52 Senate colleagues to demonstrate the very resolve in protecting the Union that they now publicly laud while reflecting on the lifelong patriotism of Justice Scalia. If it means electoral losses – so be it – for they will have saved the Union, protected liberty and preserved the opportunities that only freedom can shelter. We can win the Senate back another day. It will be much more difficult, if not impossible, to win America back.
None of this political arm wrestling would be an anathema to Justice Scalia.
Justice Scalia loved the political fights of Washington. It was, after all, the essence of the sloppy democracy that the Founders had contemplated when creating the greatest civil government that this planet has ever known. We — conservatives, Republican presidential candidates and, most importantly at this moment, the U.S. Senate — would do well to remember this patriot who has died, by doing everything we can to protect the America to which he dedicated his life.
Justice Scalia’s American spirit remains with us. We should be guided by it as we move forward, for it is only in accepting and winning this nomination fight that we can ensure that his spirit survives and that this great American may truly rest in peace.