Replacing Scalia

An uncontroversial controversy

What's Going On? | Matt Boomer | February 19, 2016

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The death of Justice Antonin Scalia spurred many reactions. Although politicians were ubiquitous in expressing sympathy, many ordinary folks on the left took to social media to celebrate, usually citing some version of “worst justice EVER” as justification. If you truly believe Scalia was the worst justice ever, you should look up Roger B. Taney and his rather infamous 1857 case. Hey, I get it, middle-school history is hard. But dancing on a dead man’s grave is unseemly as it is. You can at least try not to be grotesquely ignorant while doing it.

Meanwhile in the fever swamps, speculation ensued as to whether Scalia was murdered by the Obama administration. This seems unlikely, as they were probably busy covering up the 9/11 inside job and inserting autism-inducing agents into vaccines. So much skullduggery, so little time.

A discussion more mature than either of these, yet often equally inane, has surfaced regarding Scalia’s replacement. Mitch McConnell vowed not to confirm any Obama nominee, stating, “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.”

There are several ways to react to this.

If you’re lazy, you can parrot the breathtakingly asinine response of New York Times editorial writer Brent Staples, blogger Amanda Marcotte, and presidential candidate/probable Nigerian e-mail scam victim Hillary Clinton, and say Republicans are just racist. Staples: “In a nation built on slavery, white men propose denying the first black president his constitutional right to name Supreme Court nominee.” The problem: McConnell never denied Obama the right to name a nominee, and there is no way he could do so. Although some have erroneously claimed that by some nonexistent rule Obama should not nominate a replacement during an election year, McConnell was only proposing that the Senate block an Obama nominee’s confirmation by rejection or filibuster, which is the Senate’s right as much as it is Obama’s to make a nomination. He merely cited the pending expiration of Obama’s term as one reason this should be done. This is the actual reason behind most conservative calls to block Obama’s nominee. The only logical way to come to the conclusion that McConnell’s stance is racist would be if Obama were the only president to have the Senate threaten to block one of his nominees, which he is not.

One could take the Elizabeth Warren route: insist that the people did have a voice in choosing Scalia’s successor, and made their choice by electing Obama and investing him with nomination duties. This was received approvingly by Warren acolytes, such as the cyborg that processes news and regurgitates it as left-wing orthodoxy for Salon, but there is an easy rejoinder: the American people also made their voice heard by electing the Republican Senate, granting them the power to confirm or deny nominees. The Constitution requires that Supreme Court justices be appointed by the President “with the advice and consent of the Senate.” If the President and Senate have different views, as is the case now, there will be friction in regards to who sits on the court. The conclusion of a rational person is that the ability and obligation of government officials to uphold their constitutional duties and privileges, whether in the Senate or the White House, ought not to be at the mercy of something as fickle as the democratic will.

(Incidentally, this paradox was only created when the Constitution was amended to make Senators elected by popular vote rather than state legislatures – a functional distortion for which you can thank the intellectual forebears of Elizabeth Warren).

A common response to this paradox is to demand the Senate bow to an unwritten principle of deference to the president’s choice. However, if such a rule ever existed, it was annihilated in 1987, when Democrats blocked the confirmation of Robert Bork with a campaign of stigmatization so legendary, Bork’s name became a verb. Later, in 2007, Democratic Senator Charles Schumer swore to block any George W. Bush nominee on the grounds that “We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.” If you replace Roberts, Ginsburg and Alito in that sentence with Sotomayor, Scalia, and Kagan, you have McConnell’s argument. And of course, in the ultimate irony, Obama himself filibustered Alito’s confirmation.

Schumer has attempted to walk back his comments, saying he was only talking about extremist nominees, but the stridency of his 2007 words suggests he is now backtracking to sidestep accusations of hypocrisy. Obama has expressed regret for filibustering Alito, but adds that it was “based on substance,” as opposed to the GOP’s move, which is based on politics. This is a paper-thin distinction: Obama’s filibuster was based on substance because he did not want another conservative justice, but it’s politics when the GOP does it because…they don’t want another liberal? After all, the reason for their opposition is the fairly reasonable assumption that Obama would nominate a liberal. Whatever the reasons for opposing Bork (there were some good ones), they were political, just as Obama’s were for opposing Alito. The president’s excuse ultimately amounts to “it’s different when my side does it.” This sort of magical moral thinking is, sadly, popular across the political spectrum. It explains Trump supporters’ decrying corruption while supporting a man who advertises his own, as well as students protestors’ failure to see the irony in demanding a “safe space” while encircling a lone individual and screaming obscenities at him.

Obama has the right to nominate a successor to Scalia. The Senate has the right to block that nomination. None of this should be controversial. Should the Senate wait to see who the nominee is? Yes. Is it unprecedented, corrupt, racist, or otherwise against decent standards of conduct to state preemptive opposition because the nominee will likely have (in their view) incorrect and damaging interpretations of the Constitution? Hardly.