In an ideal world, both sides agree on Scalia’s replacement

February 19, 2016

OPINION by ROGER FREBERG

I think if you lived in a hole or an island without power you may not have heard of the death of Antonin Scalia. The reactions have been immediate and passionate, ranging from sadness due to the loss of a last vestige of the “good times” of President Reagan to the hateful bitterness of those who celebrate the death of an anti-Christ who dared to admire the Constitution.

For one side, fears about the outcomes of choosing Scalia’s successor include the end of civilization as we know it or at a minimum, the end of a constitutional government. Threats to freedom of speech (1st amendment) and the right to bear arms (2nd amendment) have not been trivial in the last seven years. This side advocates for Congress to do nothing until the new president takes office, with the desperate hope that the new president will be more likely than the current one to nominate someone who respects the Constitution.

The other side believes that a “correct thinking” justice could solidify legal abortion, gay rights, open borders and the ability to continue legislating from the bench. They advocate that President Obama has every right to a Justice of his own choosing. According to this viewpoint, it is Congress that is overstepping its authority if it does not confirm the president’s choice. Allow me to refer to that scrap of paper which few on this side respect:

The Constitution states in Article II Section 2 that the President “shall nominate, and by the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” The Senate has reviewed in total 160 nominations and confirmed 124 of them.

Outside of the political posturing, the facts are fairly simple. The president can nominate anyone of his choosing–maybe even you or me? However, the president’s choice has to survive the vetting of a committee or two and a vote of the Senate. The Senate has been contrary at times and has turned down those whom they feel are unacceptable for one reason or another.

Personally, I think they have a bias against candidates with facial hair, be they a man or a woman. The rejected candidates are spoken of as getting “Borked” after Robert Bork, nominated by Ronald Reagan in 1987 but rejected by a Democrat-controlled Senate. There have been more recent rejections and attempts to reject as well.

Back in 2007, Senator Schumer stated that he would block any nominations of then-President Bush, who had 1 ½ years left in his term. Schumer referred to his attempt to filibuster the Alito nomination as one of his biggest “failures.” Schumer was joined in his efforts to stop Alito by then-Senator Barack Obama. Today, Senator Schumer and President Obama want to see a quick and speedy approval. My, how times have changed.

Besides Bork, Republicans still remember the harsh treatment of Justice Clarence Thomas during the hearings. Things could get brutal. On the other hand, some Republicans in Congress have surprisingly and suddenly cratered to unseen pressures in recent years, so this might not be the fight we expect.

In an ideal world, we might ask our leaders to agree on a nominee who is respectful of the Constitution, who takes a humble approach to the words and intent of the Founding Fathers, and who would work to reassure all Americans that their rights will be protected. Public trust in the federal government is at an all-time low, and the right person could help rebuild a sense of safety from government intrusions. This should not be an “I win—you lose” moment, but rather a win—win.

What I loved about Antonin Scalia

In the jockeying for position that has become modern politics, we should not lose sight of the contributions of the man. We should take a moment to share our condolences with his family and friends. His experience and achievements are impressive. Probably what I enjoyed about Scalia most was his sense of humor and his ability to skewer the self-important. He made you chuckle at his targets. Obamacare had aspects he described as “pure applesauce.” He chided the court for inventing new minorities. Other favorite quotes speak to his innate insight into politics and the human condition: “Have the courage to have your wisdom regarded as stupidity.”

There is no doubt he was a conservative, as his positions on abortion and religion are quite clear. But he also took positions that those who see conservatives as simple-minded might find surprising. He supported the right to burn the flag and crosses, and he argued in favor of due process for Guantanamo detainees.

He was called a bit “wonkish” for his adherence to the Constitution; however, his position helped keep the others from drifting too far afield. There is always a great temptation among the supremes to legislate from the bench, which according to the law of the land remains (at least for now) the responsibility of another branch (and no, I don’t mean the famous “executive pen”).

Justice Ruth Ginsburg said of Scalia, “from our years together on the DC Circuit we were best buddies.” Clearly they were very different worlds, one liberal and one conservative, but they found common ground in a friendship. She remarked at how his written opinion could subtly alter the final ruling.

Antonin Scalia offered a perspective needed on the Supreme Court. Regardless of the nature of his replacement, he will be missed.