Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Scalia’s Passing: A Reminder of the Stakes
The death of Antonin Scalia ought to be a wake-up call. Mitch McConnell, to his credit, has made it clear that Barack Obama will not be allowed to replace Justice Scalia. That means that the question whether we will retain even a hint of constitutional government lies in the hands of the next President.
Think about it. Do you want Hillary Clinton, Bernie Sanders, or Donald Trump to name Scalia’s replacement? Think about it, and think about it again and again. Given the ages of the sitting Justices of the Supreme Court, it has been obvious for a long time that the next President will be in a position to reshape the court. This sad event is a salutary reminder of the stakes.
I am not of the opinion that Scalia was without fault. He was, in fact, an old-fashioned New Deal Justice. He accepted what FDR did to the Constitution when he threw ought the limits on federal power implicit in the commerce clause. The only one to challenge the New Deal consensus in this or any regard was Clarence Thomas, who really is our most distinguished Justice; and I regret to have to say that Scalia rarely followed his lead.
But Scalia knew arrant nonsense when he saw it, and he was prepared to call a spade a spade. His opinions — especially, his dissents — are in consequence a joy to read. The man could write; and, my oh my, could he think.
I met the Justice once. I was in DC. I had arranged to have dinner with an old friend, who is a distinguished journalist. He was invited to the Christmas Party put on every year by Dick Cheney, and he suggested that I tag along. At the party, which was a large affair, Scalia happened along and greeted my friend, who introduced the two of us. It says much about Scalia that he spent the next half hour chatting with a total stranger of no importance. He was a gent, and he was good company. It does not surprise me that the man I met should have written with such verve and force. There was an ebullience to him that I immediately admired.
If Scalia is replaced by someone nominated by Obama, Clinton, Sanders, or Trump, you can kiss the last vestiges of the Constitution away. It is bad enough now. In the era of “protected categories,” it makes no sense to speak of “equality under the law.” Those excluded (white men, for example) are not protected. In the current atmosphere, moreover, federalism is a joke, and so is the idea of limited government. One more vote and we will no longer be in retreat. It will be a rout; John Roberts, who is a coward, will join the other side; and radical willfulness of the sort exemplified by the current President will replace even the semblance of lawfulness.
Think about the situation we are in. The Republicans won by a landslide in 2010 and again in 2014. But elections — to the legislature — no longer matter. The executive agencies, battered by the President, will issue regulations that have the force of legislation; and unless they are struck down by the courts and ultimately the Supreme Court, the whim of the President will be the law of the land.
If you want to know why a thug like Donald Trump has emerged as the Republican front-runner, you have to consider the fact that the Republicans can run up majorities larger than those they achieved in the past at any time since 1928, and it has no effect at all. They are too timid to exercise the power of the purse. Legislative supremacy has in effect been abandoned. What we have borders on a dictatorship of the executive; and, in that, the Republicans have acquiesced.
Over the next few months, as you consider whom to support, ask yourself this, and then pose the same question to yourself over and over again, “Which of these candidates is a genuine advocate of constitutional government? Which of these candidates has the force of will and the grit to rein in and roll back the administrative state?”
Forget immigration. Forget tax plans. Forget Obamacare. Forget ISIS. Forget Russia (but do not forget China). Our difficulties in these regards are symptoms of a larger disease. The only question that will matter ten years from now is whether we will be ruled under the Constitution by law or without a constitution by executive fiat, and I would submit that neither of the surviving Democratic candidates nor the leader in the Republican race can be trusted in this regard.
For more than a century now, we on the right have temporized. There comes a time when there is no more room for compromise. We must either surrender and accept our fate as subjects. Or we must fight!
I am confident that if the Justice I met at Vice President Cheney’s Christmas Party were sitting where you are now sitting, he would fight. Read his opinions, and you will see what I mean. Read his opinions, and then seek out a candidate intent on doing what Scalia would do if he had the chance.
Published in General
Trump picked a good night to have a melt down.
Any conservative who loses at the appellate level would be wise to not ask for the Supreme Court to hear the case this year. You might hear of 5-3 verdicts against the good guys, too.
Paul accuses Republican leaders of timidity. But what if they are reading the politics correctly? I don’t see any great desire to oppose Obama’s extra-constitutional activities and I can’t imagine anyone who’s not a republican will like the idea of blocking confirmation of a justice, regardless of how noxious they might be. The media and the culture are against us. I don’t see how a showdown ends well. We’re in trouble not because Obama won’t follow the Constitution. We’re in trouble because a majority of our fellow citizens thought he was a great choice.
They are probably only in a pro-forma recess, not an actual recess, to prevent recess appointments. This was recently litigated and SCOUTS allows Senate rules to decide when Senate is in recess, not the President.
Wish I could believe that.
If Republicans deny President Obama the opportunity to choose the replacement, they had better be ready for a media war. Democrats have all year to misrepresent this and hammer their story. Either Republicans get ahead of this now or they will lose seats in November.
I was shocked by Scalia’s death, but even more shocked at the sense of dread that overcame me. Bad enough Obama got two Justices, now he seems likely to get a third (and I really don’t know how I feel about how this should be handled going forward).
If he gets a justice, likely a moderate lib, it will tilt the balance of the court, but maybe not for long IF a conservative (or conservativish) president wins the WH. How much longer can Ginsberg and Breyer have?
But if Hillary or Sanders or Mystery Candidate wins, likely they take the senate (albiet narrowly). Ginsberg and Breyer will almost certainly be replaced by fetuses (pro-choice, naturally) and with Sotomayor and Kagan instill at least a decade- likely two- of liberal rule. If we lose either Thomas or Kennedy (mostly Thomas) in that same window… game over.
Like many of you I feel the politicization of the SCOTUS is a terrible thing but it happened and we have to deal with it. Stonewalling a nominee could prove a minefield in an election year, and our leadership loves nothing more than jumping on landmines.
If there was any doubt that this would be the most consequential election since 1980, Scalia’s passing should shatter it.
And Trump still circles…
The GOP handles the media poorly, and I’m not sure how much the presidential candidates should insert themselves in this, though for Rubio and Cruz it must be done.
I still have the gut instinct that elections have consequences and the President should get his judges. But with the games he has played with congress, that his party has played with the filibuster, I could support the stonewalling of his nominee. However I do think it behooves the senate to at least consider and debate the merits of anyone he puts up.
In the end, the ball is in Barry’s court. Let’s see what move he makes.
There’s much to love in this post. Roberts is a coward. The GOP runs from easy fights and slays the base.
Mitch McConnell has made it clear only that he will not be blamed for Obama steamrolling him. He knows there will not be a GOP stonewall, so he is shifting the blame by calling it somehow inappropriate for Obama to nominate so close to an election.
But that’s not what the Constitution says. Obama certainly never minds violating the Constitution when he chooses, but he is not above relying upon it when he is right.
He will be right. He will nominate, and the GOP will confirm. I suspect there will be a sacrificial nominee first, to drain the will to fight. Once the GOP retains their honor through token resistance to a token radical, they will have no support to block a second, “more reasonable” nominee, a solid structural Marxist who will cement the Obama legacy.
We are very far behind the power curve. We can head nothing off at the Supreme Court. Every agency has its own SWAT teams. Let Roberts enforce his rulings. Other than that…
Good point. And they should be prepared to wage populist war on it, not just constitutional war. Not eat-the-rich populism, but protecting-the-rights-and-wellbeing-of-ordinary-Americans populism. I question their willingness and capability to do this.
We’re in more trouble because we are leaving no examples to inspire those who will come after. Cowards, liars, traitors.
Anybody can poke a finger in the air and say “Sorry, Constitution’s not popular any more.” We should fight desperate battles and ensure that even when we lose, we exact a terrible punishment. Instead, we fluff the pillows of our conquerors.
When one thinks about the Republican dominated Congress, and now of particular importance, the Senate, then one word comes to mind: “timidity”. And, add to that “irresolution”. Senator McConnell’s leadership can certainly be summarized by these two words.
Let us hope that a Constitution-minded presidential candidate, like Ted Cruz, steps forward with names of specific conservative jurists who the majority Senate Republicans should find most acceptable. This is too critical a time for the Republicans to simply play the blocking game for Obama’s nominees. We know how that would turn out. A message needs to be sent as quickly as possible to let Obama know where the high ground lies. Cruz has an opportunity here.
Arnold Falk
We’re in trouble because a majority of our fellow citizens don’t care much (or at all) about the Constitution.
‘Black & blue, the flag of skepticism.’
It’s still cowardice, even if the danger is real. If you want to make a case, these people are prudent, you have to explain what their strategy is.
Aside from prudence, I hope he succeeds in this valiant opposition just to read your thoughts afterward, about how the world don’t make sense any more if a GOP man puts up a fight!
Really good phrase. Also, I liked the Jackson-Marshall allusion. Is the closing sentence a Lincoln assassination joke?
Good form, Ball–you’ll be white hot by November!
In five words:
Scalia’s reward, the nation’s punishment.
I hope so, because that is exactly where we needed to get to and getting there can take longer than the proverbial (Obama) stroke of a pen.
I concur: Midterm elections have handed the legislature to the GOP with the consequence he Senate is legally and constitutionally justified if it decides to stopper up the President’s nominations. “Why” doesn’t matter.
In this case, only “if” matters. If Senate GOPers have the stones, if they understand the existential threat from within this situation presents, if the people have the will to agitate our placid, self-satisfied ruling class.
I think we all, here, understood the importance of the upcoming election. Perhaps Scalia’s passing will have the effect of amplifying and sharpening that understanding across a broader swath of the electorate.
Wait and see. On this, I am confident.
So, we should acquiesce . . . as usual? In the court of public opinion, you always lose if you do not make your case and put up a fight.
Republicans in the Senate have a dual charge in the year ahead, and it will be difficult to balance. They must simultaneously stall any appointment to the court so as to avoid a generational leftward lurch on the bench; at the same time, they must not alienate so many voters by the exercise of this power that they render the election of a Republican impossible.
We should also be careful that the arguments we employ don’t hamstring us in the next administration with our own judicial appointments. Winning both the Presidency and the Congress will be key in this regard.
The fact that McConnell promises to block the nominee is a positive sign. But the reasons he’s cited so far, that the people should have a voice in this appointment, are a bit soft. We are in need of an argument that goes to the root of why the advise and consent clause exists (see Federalist 76, 77). We should be making a wider argument about Obama’s previous abuses of power and executive overreach and the lack of trust in American institutions.
Prof. Rahe,
I agree with every word you wrote, including “and,” “or,” and “the.”
As you indicated, the stakes are not high: they are the highest.
To update a famous sentence by Lincoln, “If progressivism is not wrong, then nothing is wrong.” With a five progressive votes on the Court, any chance of free government will be at an end, and we will all be in servitude to our progressive masters.
Thank you.
Maybe conservatives need to make a movie about not breaking up the band? Finding a replacement in the conservative chorus? Justice Thomas would be the bass & the Chief Justice the soprano, & you cna figure out the rest…
Watching the Sunday show hosts interrogate our candidates about replacing Scalia makes me think that no argument is going to satisfy the liberal media. Let’s just say Noooo. If we have to make an argument we could point to the fact that Obama joined the filibuster against Samuel Alito. But honestly, given how Harry Reid ran the Senate, do we really owe these people an explanation? We’ll shut it down because we can…Next question.
And don’t forget the Dems filibustered the eminently qualified Miguel Estrada for the DC Circuit because, as Ted Kennedy and Dick Durbin were proud to say, he was Hispanic, they saw it as a first step towards Estrada becoming a Supreme Court nominee and they didn’t want to have the GOP appointing the first Hispanic justice. So screw Obama and the Dems on this.
We just better win the Presidential election and, if we win, we better not do it with Trump, who could easily appoint someone as bad as Hillary or Bernie.
What about this? (In 1960, the Democrat-controlled Senate passed a resolution barring election-year Supreme Court appointments.)
A lot depends on who the President appoints. And how.
I doubt he immediately reaches for the recess appointment gun. The argument employed for recess appointments is traditionally one of, “the opposition is stymying progress because they are meanies”. The other consideration is how the justices would respond to a recess appointment. Might they not recoil in horror at being thrown into the midst of a political battle. As I understand, the court makes its own rules. While they attempt to present a front of collegiality, they operate in their own internal rules and calendars. No far reaching decisions until a permanent appointment is made is a likely outcome. The court needs the perception of legitimacy.
If the President follows standard procedure, the Senate has the better part of the year to hold hearings and votes. I don’t think the President can change his nature. He will opt for a divisive choice, intending to whip up a frenzy in the left if that person is ignored or rejected.
Fight or acquiesce is a false choice. Trump is lauded because he wants to fight–with a bunch of rude, tough talk nonsense. I understand you don’t care for him. But why not? He fights. Or talks like he does.