Within hours of the sad news of Justice Antonin Scalia’s death, political leaders issued statements about nominating his replacement. In most cases, their remarks have been misleading, disingenuous, and obvious political nonsense.
Both sides have wrapped their rhetoric around half-truths regarding the Constitution.The Republicans immediately jumped to a strategy that says, “Block any SCOTUS nominee sent by President Obama. Stall all confirmation actions in the Senate, until January 21, 2017, when a new president takes over.” The president and his followers have claimed that the Senate has a “constitutional duty” to vote on the President’s nominee, expected to be a so-called Liberal judge. The Republican-controlled Senate leader has stated that we must nominate and approve a so-called Conservative to be confirmed after President Obama leaves office.
Few voters understand the role of the Supreme Court. They see the party positions as more election year gobbledygook. Many don’t realize that the country needs to replace Justice Scalia with a judge who takes the job as it was meant to be, and not as a supporter of either liberal or conservative viewpoints.
People who insist on a Liberal or Conservative nominee should note how the Court has acted historically. In many high-profile cases, so-called Liberal or Conservative Court majorities have approved laws and lower court decisions that were opposite of their political philosophies. The current court makeup, derided by Democrats including the President, approved decisions favoring Obamacare, and Same-sex Marriage, the two most impactful decisions of the Obama years. Five of the seven Republican-appointed judges voted to support the pro-life Roe v. Wade decision, the “gold standard” of Democrat Liberalism.
Over time, so-called Liberal or Conservative positions seem more neutral when stripped of the political rhetoric that originally surrounded them. When that happens, we might assume that the justices did what they are supposed to do. Their job is to analyze and hand down decisions supporting specific requirements of the US Constitution.
That’s where things become contentious. The so-called Conservative justices believe that their decisions depend on the exact wording of the Constitution, and the intent of the Framers who wrote it. The so-called Liberal justices look for ways to interpret the actual words to fit their political philosophies. (Unfortunately, that exercise can become as far-fetched as a well-known former president interpreting a law publically by saying “It depends on what the meaning of the word ‘is’ is.”)
Ridiculous interpretations of that kind are useless in interpreting the Constitution. Despite the yammering of people who want to ignore it, the Constitution remains as the supreme law of the land. As with any large, complex endeavor, the US must have a specific system of clear, unbreakable laws that guide every new decision made by Congress or by the lower courts.
To understand the importance of specific laws defined by the Constitution, let’s compare it to the football rulebook of the NFL. What if some teams insisted that certain words in the rulebook could mean that fists to the face should be made legal? The commissioner would have a committee of team owners determine whether that interpretation met the actual meaning written in the rulebook. Regardless of any committee member’s personal feelings, use of fists would be a losing proposal. The overarching basic rules of the game wouldn’t permit it. If owners felt the need to change the rulebook itself, they would need a mechanism to amend the rules. Perhaps every team owner and players’representative would have a vote for or against any proposed change.
SCOTUS justices must work the same way. They should stick to the meaning of the actual rules, not their personal philosophies. If any part of the Constitution needs changing, it defines a process involving a vote of the legislators in every state. The usual whining politicians say it takes too long to amend the Consitution. If that’s true, they need to streamline the process with due dates and modern technology.
The SCOTUS decision in the recent Citizens United case is a politically controversial example of how the Court should work. This decision, criticized by the President and other Democrats, struck down laws that previously kept unions and corporations from spending money on political campaigns. Though Democrats claimed that it was a pro-conservative decision, the Court held that the First Amendment prohibited the government from restricting independent political expenditures by a nonprofit corporation.
Stepping away from the politics surrounding the Citizens United case, this decision hurt both parties equally. By permitting the massive infusion of Corporate money into campaigns, it results in a dramatic increase of political TV commercials, already disliked by voters. Moreover, it permits unions and wealthy corporations to have a larger voice than individual Americans. The SCOTUS decision, however, was to maintain the First Amendment right of organizations to have a voice in the political process. A majority of us don’t like this decision. Many politicians wave their arms and blame the Court. But if politicians have the courage of their convictions, they would pass legislation to amend the law, or to create a Constitutional amendment against it.
What Should the President Do Now?
President Obama needs to stop issuing implied threats and constitutional claims. He should initiate closed-door negotiations with Republicans to identify a SCOTUS nominee that would be as close to neutral as possible. This statesmanship would rightly burnish his historical legacy. Besides that noble goal, the President now holds a losing hand, and can only muck up a presidential campaign that is already a bi-partisan mess.
What Should the Republican Senate Do Now?
Republicans must stop beating their collective chests about the word “Conservative.” They need to negotiate for a nominee with a constitutionalist philosophy and present a bipartisan committee-driven nomination to the Senate Floor. To maintain the kind of court that will serve all Americans, they need to win the presidential election, by nominating a candidate that represents their beliefs.
My book “The Victory that Wasn’t” offers a fictional alternate history with a different kind of Military, and better outcomes for all Americans. It’s available on Amazon at http://amzn.to/1GUL8oX