By Scott St. Clair | The Save Jersey Blog
HONOLULU – Feb. 14, 2016 – The news of the tragic death of Supreme Court Justice Antonin Scalia broke during our layover in Seattle as we were en route from New Jersey to Hawaii. It was a horrible blow for every conservative lawyer, judge, legal scholar, court watcher and political operative in America.
Not so much for what it represented politically, and it does represent a lot, but because a man most on the right regarded as a genius and inspiration had passed from the scene. And because his passing is maybe the biggest game changer for what the 2016 presidential election means both immediately and in the long run.
Until he died, there was a 5-4 conservative majority on the Court that, most of the time, meant that a conservative point of view prevailed. Sure, there were exceptions that made news and roiled the base like Chief Justice John Roberts siding with the liberal wing to uphold Obamacare or Justice Anthony Kennedy authoring the opinion striking down legal prohibitions against same-sex marriage, but these are the exceptions, not the rule. If you read opinions on a regular basis, the majority held strong in the vast majority of criminal justice cases, and it was expected to do so on the large number of big ticket cases currently pending before the court. Public-sector compulsory unionization, redistricting, immigration, the use of presidential executive authority, affirmative action, abortion – take your pick – what heretofore was a near slam dunk is now seriously jeopardized and in doubt.
Without belaboring the details, which can be found all over the Internet, 79-year-old Justice Scalia was found dead at a Texas hunting camp of, as yet, unknown causes. Immediately on social media, conspiracy theorists posited all kinds of ominous scenarios to “explain” his death. This most unhelpful and unwarranted web-spinning is sill. Men and women of his age aren’t immune from a sudden passing. My 79-year-old mother-in-law died in her sleep last month.
But the real impact is on the race for the Republican nomination for president. The on-going battle between businessman Donald Trump, Senators Ted Cruz and Marco Rubio, Gov. John Kasich and retired surgeon Dr. Ben Carson will soon crystallize on the issue of who should appoint the late Justice Scalia’s successor: One of them, or President Obama, former secretary of state Hillary Clinton or Sen. Bernie Sanders, the latter two obviously running for the Democratic nomination to succeed the president.
Those who understand how the federal judiciary works – who read Court opinions, can tell you what they were doing when each justice was nominated, etc. – know that the power to appoint members of the Supreme Court is the biggest plum in the presidential basket. Since justices, upon Senate confirmation, serve for life, the impact a president has in shaping public policy and the law lives on far after he or, eventually, she has while in office.
Franklin Roosevelt appointed William O. Douglas to the Court in 1939, and he remained there until his very ill health forced him to retire in 1975. A hard-core, doctrinaire liberal, his legal theories and social and political beliefs toward the end would have horrified FDR, but by then, the issue was moot because of Douglas’ lifetime tenure.
It’s critical, then, that the appointment to succeed Justice Scalia be made by a Republican, not a Democrat. Of course, Republican appointments have frequently gone off the rail – former-Chief Justice Earl Warren, whose activist tenure caused his name to be given to an entire judicial era: the Warren Court – was appointed by President Dwight Eisenhower.
But a Democratic appointee can, and likely will be, infinitely worse. While names of sitting federal judges who received strong and bi-partisan senatorial backing are beginning to float to the surface, that is a smoke screen and a trap. Don’t go there.
The Republican-controlled Senate has the power to thwart any nomination made by President Obama, and it should use it until the name of his successor is known post-Election Day.
And that successor MUST be a Republican if for only this decision. Any of the current candidates will make a far superior choice to one made by the president or his putative Democratic allies. Because of this all by itself, all talk of Republicans sitting out the 2016 election because this, that or the other candidate is unpalatable Must. Stop. NOW!
As the old saying goes, “Hold your nose, and vote the ticket.” The alternative is far too horrifying to contemplate.
At this point, complaints over Donald Trump’s use of colorful metaphors, Ted Cruz’s oft-times hyper-evangelical approach, questions over Marco Rubio’s immigration beliefs are swept off the table in the face of the need to have anyone other than a Democrat be in the Oval Office on Inauguration Day 2017.
Truth of the matter is that as of yesterday, nothing else matters – NOTHING.
So, let the candidates duke it out through the nomination process. Let the people in caucuses and in primaries decide. And then get on board whoever the nominee is with vigorous enthusiasm, more of your time than you can spare and, if needed, your kid’s college money. After all, if a Democrat appoints the next justice, your kid won’t need college – or anything else, for that matter.
Set aside your individual grievances, think what’s in the country’s best interest and rise above what are now insignificant and unimportant differences between the candidates. Upon the Supreme Court appointment hill, you must be prepared to die.
If you don’t – if you out the election or are less than zealous in supporting the eventual GOP nominee – then another Democrat in the White House and a tip of the Court’s balance in favor of pro-everything-you-hate liberals will be on your head. YOUR HEAD!