The Court In The Balance

By Ben Domenech

Tuesday, February 16, 2016

For thirty years, Antonin Scalia reminded us that giants walk the earth. On the high court, he delivered some of the most brilliant dissents with the march of American progressivism and knew how to wield the rhetorical knife and the battle-axe alike.

He was a man of mordant humor, jolly wit and surprising grace, whose scorching logic could cut through the emanations and penumbras and come at long last to the truth. He was an infuriating figure to the American left to a degree few justices will ever match because of his capability to lose a contest and win the argument. They could beat him in the vote, but never in the debate, and few things sting more than the words of the undefeated man.

And that is how he left us – spending his last hours in Texas before the morning hunt ebullient, entertaining others with the brilliant mind that spent the bulk of its time focused on the fight for liberty but had plenty of brain cells left over for other pursuits, and passing peacefully in his sleep afterward. This was a good death, at the end of a life well lived.

“A Constitution is not meant to facilitate change,” Scalia said. “It is meant to impede change, to make it difficult to change.” This includes changing the Supreme Court, which is not intended to be an easy thing to do. Scalia’s foes – many of whom have written of him in awe in the past few days, to their credit – are now going to try to make the vacancy left behind the primary political issue in this election.

Of course President Obama – who could not be bothered to wear a tie to comment on the man’s death – has every right to nominate a successor to Scalia. There are no Constitutional grounds for him not doing so. But the Senate also has the Constitutional right to confirm or reject this nominee based on their own priorities – there is no reason they simply have to bend over and accept this nominee.

We have already seen a number of appeals to precedent regarding this nomination. Chuck Schumer has been trying to walk back what he said in 2007 – not even an election year yet – where he made clear the Democratic Senate would under no conditions accept a George W. Bush nominee. This is not the first time such statements had been made – in 1960, Senate Democrats even passed a resolution to that effect regarding President Eisenhower.

It has been more than half a century since an election year nomination and confirmation to the Supreme Court. And of the 36 unsuccessful nominees to the Court, the vast majority received no up or down vote – the Senate is not even obligated to do that.

These appeals to precedent are mostly about scoring points, though, not actually winning the argument. And this argument is, fundamentally, about the separation of powers – something of the utmost importance to Scalia in his career. Progressives have no tolerance for the gridlock that inevitably follows from the separation of power in America, and would rather sweep the whole inefficiency of this arrangement aside in pursuit of what they believe to be good governance.

So the President will nominate someone who is happy to serve a messaging function as opposed to ever getting on the Court, and Democratic Senators will pound the table and complain – but this is unlikely to hurt any Republicans politically, even modestly so.

Obstruction of judicial nominees just does not hurt candidates in either party – since the Court is primarily an institution that serves to allow America’s elites to overrule the people, its makeup is primarily an inside game, important to single issue voters, and not a general priority for the populace.

The long-term impact of this clash, though, could serve the ends of progressives by providing them with another argument to undermine the Constitution and the separation of powers. For those who seek sovereignty at any cost – the ability to rule and dictate, whether or not it is an authority derived from the consent of the governed – in order to apply their authoritarian solution for the people, the Madisonian system is a troublesome anachronism.

A year long battle over blocking a Supreme Court nominee will only further their conviction that these institutions are archaic institutions of the past that must be destroyed for the sake of the nation. They will try, and the students of Scalia will be called upon to make the case, as he did time and again, that we should “Learn to love the gridlock.”  It has been our salvation, time and again.