Watching the late Justice Antonin Scalia eviscerate a brain-dead, “living constitution,” Supreme Court decision was a bit like it must have been watching Babe Ruth take batting practice. The very best at the top of their games.
Scalia was the most solidly grounded in the Constitution as it was adopted, the most articulate, and the best writer of the nine justices. He thought, wrote, and spoke with logic and precision. As a bonus, he did all of these things with gusto and humor, just as he led his off-the-bench life, which was filled with music, laughter, and friendship. It has been said over and over that he was “larger than life,” or a “giant.” In Scalia’s case this is not hyperbole. In fact, it’s almost impossible to write about this great American without using such terms. He did as much as any single individual over the last three decades to keep a wobbly republic between the ditches, and apparently had a swell time doing this. To say that he will be missed is too feeble. To say he cannot be replaced is too obvious.
It’s disheartening to interrupt a celebration of this great man’s life and public contributions in order to deal with the controversy that his premature death (yes, even at 79 this ball-of-life’s death came way too soon) has created. But we must. The question now is should a majority Republican Senate consider Barack Obama’s court nominee, which he assured us Saturday he will make in due course, or decline to take up the nominee, leaving the matter for the next president. It’s going to be a political fertilizer storm either way.
Ever since Reagan Supreme Court nominee Robert Bork got Borked by the Democrats in 1987, the days of a civil Supreme Court nomination have been over. At the moment, no one knows who Obama will nominate. But any conservative who is optimistic about the possibilities has spent the last seven years on Mars.
The argument for considering and possibly approving Obama’s choice is that the Senate has a constitutional and moral responsibility to fill the vacancy on the court. Folks who argue this line say that if Republicans don’t take up the nominee, then future Democratic Senates will refuse to seriously consider conservative nominees. Well, they won’t. But then they weren’t going to in any case.
Recent practice has been that Democrats go all out to block conservative justices, but Republicans confirm liberal ones. A Scalia clone before a Democratic Senate would be shown the door just as Bork was. As for high court appointees, what we have, in the current unlovely term, is asymmetrical warfare. In this arena, constitutional and moral responsibilities leave Democrats unmoved. (Think not? See anything Harry Reid or Debbie Wasserman Shultz has ever said.) They’re in a knife fight, know it, and act accordingly. They will not change, no matter how consistently Republicans play by Marquess of Queensberry rules. Reach your hands out to these guys (and gals) and pull back a nub. A sorry picture, but it’s where we are now.
Doing “the right thing,” sadly, in this case would be doing the left thing. And it would help further disable a great republic, already on its heels, for a generation. If Obama’s choice is one who would guarantee 5-4 liberal decisions as far as the eye can see — and who paying the slightest attention thinks it won’t be? — it shouldn’t take much in the way of insight or testosterone level to just say no. We know we won’t get another Antonin Scalia, even in the unlikely event one exists. But how much more cranky would already unsatisfied Republican voters be with a Republican Senate if it rolls over for another Sonia Sotomayor?
RIP Antonin Scalia. You done good, paisan.