Go for it, Senate Republicans, but not the wrong way. Aim to cling to the legacy of the great, recently departed Supreme Court Justice Antonin Scalia, to keep a decent balance on the court, to save the Constitution from rips, tears and a trash basket. But don’t imitate a president forever turning his back on Congress by turning your back on him. Give him a chance to hang up his arrogant ideological stridency for once.
It’s truly a hard time right now. Scalia, besides being a buoyant, loving, good man, was one of the best things to ever happen to the court. Give him a decision to write, even a dissenting decision, and what you got was something exceptionally lucid, stylistically powerful and profound in what it said. An underlying message was almost always opposition to the love affair of liberals with what they stupefyingly and contradictorily called “a living Constitution.”
What they meant by the word “living” was that it was actually burial time for the centuries-old document and birth time for their own modernist attitudes, progressive values and maybe, too, the public mood of the moment. Occasionally the Constitution needs amending, and there’s an amending process available, but these people essentially aimed to replace it with oligarchical moral superiority. They just didn’t get it that the Constitution is the major means by which we retain the essentials of our republic, not least of all our rights.
Here’s what Scalia taught: Court decisions should be based on the original meaning of the Constitution’s text. And here’s what he got: Quite a few liberal academics, judges and politicians gradually converting to his view. It doesn’t follow that they thereby eschewed all the old stuff, and the conservative Scalia wasn’t wholly pure, either. But he was miles closer to the goal than most liberals, and if someone too far gone is nominated to replace him, the person should be rejected.
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At least, however, the nominees should be considered, and Senate Republicans are saying nothing doing. They don’t even want to hold hearings or any of the rest of it, but why not? By interrogation and examination of records and more, they can decisively demonstrate that a nominee is unfit if in fact he or she is. Any accusation of unfair play will be scooted aside. And President Barack Obama can hardly complain about a rejection since, as a senator, he himself fought against two nominees made by President George W. Bush, essentially saying he didn’t like their political ideas.
Among the many issues that should be raised in detail by the Republicans: to what extent can a president rewrite federal laws or extinguish state laws of his own accord; does the person agree with the Democratic desire for new restrictions on free speech; does the nominee think it constitutionally permissible for an organization to have the legal power to require dues from someone who has refused to join, even if it is a public employee union?
There is plentiful precedent for rejecting nominees, even precedent for leaving vacancies open for long periods of time. There would still be problems for Republicans. With Scalia gone, the court has one less conservative, leaving three conservatives, four liberals and one person in between. If there is a 4-4 tie in deciding cases, the lower court ruling is affirmed, meaning conservatives lose on some major matters and liberals on others. These matters can be reconsidered with a nine-person court, however.
What we don’t know is who the next president will be or even who will control the Senate. Any party that gets the presidency will almost surely have more court vacancies to fill in the coming term. Whatever happens, sticking up for the Constitution right now without establishing a liberal majority is worth doing — but it should be done in a way that relays fairness and conscientiousness.
Jay Ambrose is an op-ed columnist for Tribune News Service. Readers may email him at email@example.com.