Whether you think God killed Justice Antonin Scalia in his sleep in order to reward him for his work here on earth or whether to save the country from further damage done by his judicial philosophy or whether to simply inject some seriousness into this year’s presidential campaign, you have to admit God has a thing for timing.
As Democrats, let us first stop to recognize the public service the 79-year-old Scalia rendered to his country. It is proper we do so because we belong to the party of government. We believe government is a force for good and we should therefore honor all those who sincerely believe they are serving the interests of the people. And whatever you thought of Antonin Scalia, he certainly was sincere in his belief that he was serving the interests of the people—even if it was the people of the 18th century, who were mostly white, male, Christian, and gun-toters.
Even though these last few days he has been given a lot of deserved credit for his unusually colorful written opinions and for his obvious first-rate intellect, Scalia’s judicial philosophy was really a bleak, third-rate heretical hermeneutic that, oddly, viewed the Constitution as a static document—“the good, old dead Constitution,” he said—with nothing to say to an evolving America except: if you don’t like it, change it. If that stale version of constitutional interpretation had prevailed throughout our nation’s history, America would look very different today, especially if you are not a privileged white person with dibs on the front seats of every cultural bus.
Scalia’s passing gives us even further insight into the Republican mind, admittedly a very scary place into which one’s inner peepers shouldn’t peep too long. We find today that Republicans everywhere have decided that a black man, in this case the African-American President of the United States named Barack Hussein Obama, has, in the words of another Supreme Court justice with a Scalia-like view of the Constitution, “no rights which the white man was bound to respect.” In other words, Republicans have decided that Barack Obama is sort of an Article 1, Section 2, Clause 3 president: three-fifths of an executive who should just sit out his last year in office and keep his uppity hands off the Supreme Court.
Really, though, Republicans, beginning around noon on January 20, 2009, have always treated Mr. Obama as three-fifths of a president, if not as three-fifths of a man. He has never quite been worthy of full respect. His legitimacy as our president has been under assault from the beginning, and today the front-runner—repeat: front-runner— in the GOP primary was and remains a leading proponent of the idea that President Obama isn’t even entitled to a three-fifths benefit of the doubt, since he wasn’t born in America. So, really, it should be no surprise to anyone that Republicans, who say they, like Antonin Scalia, treasure the integrity of the Constitution, are so willing to ignore its provision that demands the president should nominate a replacement for an open seat on the Court, whether it be in his first year in office or his last.
And it should be no surprise that it was Mitch McConnell, who, before Scalia’s lifeless body had cooled down, came out and said the new vacancy “should not be filled until we have a new president.” Mr. McConnell has led the charge to make sure President Obama was a three-fifths president, and that fraction is a generous interpretation of Republican congressional obstruction during his two terms in office.
But let us now pass on to the politics of the passing of Justice Scalia. It is clear that Mr. Obama will not get to name his replacement. For an excuse, Republicans, on and off the debate stage, on and off television, have offered up the notion that it would be virtually unprecedented for a president to fill such vacancies during election years. But that is, like so many claims on the lips of Republicans, obviously false. As Vox helpfully points out, there have been 14, the last one being Anthony Kennedy in 1988, who still sits on the bench. Maybe President Obama could make a deal with McConnell: “You get Kennedy to retire, since under your current theory he was confirmed illegitimately, and I won’t nominate anyone to replace either one of them.”
Given that such a scenario is about as likely as a Scalia resurrection, the focus for the rest of this campaign on the Republican side will be how Scalia’s replacement will radically alter the country, if Democrats should win. Here is Ted Cruz:
“I don’t think the American people want a court that will strip our religious liberties. I don’t think the American people want a court that will mandate unlimited abortions on demand, partial-birth abortion with taxpayer funding and no parental notification, and I don’t think the American people want a court that will write the Second Amendment out of the Constitution.”
Many of us know that Ted Cruz will never be the nominee of his party and it is easy to dismiss this talk as utter extremist nonsense. But let’s look at someone who I think does have a chance to become the nominee and who, unfortunately, gets journalistically lazy credit for being a “moderate” in the GOP presidential field. Let’s look at what Jeb!—now lately Jeb Bush!—said this morning. After being pressed by NBC’s Savannah Guthrie on the issue, Bush III said it was all up to Mitch McConnell whether to allow a vote on a replacement, and then added:
“There shouldn’t be deference to the executive, is my point…If there is an up or down vote it should be rejected, based on the history of how President Obama selects judges. If there’s no vote, that’s fine, too. What I’m saying is there shouldn’t be—an Obama justice should not be appointed in an election year. Let this be an important part of the election process. Because there’s a lot riding on this. The Second Amendment, religious freedom, and many other causes that are important for this country will be determined by this pick….there should not be an appointment based on the record of President Obama’s selection of judges. They are way out of the mainstream and this should be an important point that we have in the election. I’m more than happy to litigate that.”
Again we see the three-fifths dynamic at work here, as it applies to President Obama. “There shouldn’t be deference to the executive,” Bush III said, which is an odd thing coming from a man running to be that executive and whose brother enjoyed such bipartisan deference that we ran ourselves into a war in Iraq that has turned the world upside down. But leaving that aside, there is the idea that Mr. Obama’s “history” of selecting judges disqualifies him from, well, selecting judges. Just what that disqualifying history is Jeb didn’t bother to say, mainly because, for Jeb’s audience, it is enough to insinuate that President Obama doesn’t have any rights that a white Senate Republican majority is bound to respect. But it seems to be for Jeb that Obama’s appointments “are way out of the mainstream,” a strange thing to say in the context of Scalia’s death, since the departed justice had been, if anything, fishing in a judicial stream far from the 21st century. But I suppose compared to many of the strange things that have been said by Republicans this election season, Jeb’s critique of Obama is only mildly outrageous, even if wildly ridiculous.
In any case, the Democrats can now, hopefully, stop arguing about pie-in-the-sky single-payer promises and free-tuition-in-every-pot politics. And Bernie can maybe stop insinuating that Clinton is a dishonest, money-grabbing shill for big banks. The party faithful can now clearly see what is at stake here. A loss of the presidency, which would carry with it a certain loss of the House and a likely loss of the Senate, would mean a right-wing ideologue would appoint another Justice Scalia to the bench, and then complete control of the entire government—they’d have it all, people!—would be in the hands of the reactionaries.
That possibility should be enough to scare the Bern out of any Democrat.