Cartoon by Nick Anderson.
Antonin Scalia has died, and already conservatives are trying to frame his legacy as a staunch originalist who ruled based on what the law said, not what the political trends were. Liberals such as myself have a hard time swallowing that pill, as we see him as more of an actively conservative judge who ruled largely along ideological lines. I personally find it hard to believe an originalist would side with Hobby Lobby and rule that limiting campaign contributions from corporations was a detriment to free speech. Regardless, I don’t think his legacy will become clear until well after his death. It’s easier to judge the dead long after the fact.
As of writing this, Scalia’s seat on the Supreme Court has not been filled, nor has Obama nominated a replacement. Yet already we see congressional Republicans lining up behind Mitch McConnell in his move to block any Supreme Court nominee until a new president is elected. Their reasoning is that Obama should not be able to pack the court with another liberal justice, tilting the Supreme Court to the left and making it easier for activist rulings to be issued.
There’s something shocking yet depressingly familiar about having one of America’s two major parties being willing to paralyze one of the biggest institutions in the country to score political points. Republicans have been blocking Obama’s nominees ever since he took office, forcing many agencies to go without leadership for months or even years. Republicans, despite trying to brand themselves as something other than the party of “no,” are taking this to the logical extreme with this recent stance against replacing Scalia. This is somewhat expected, but it doesn’t make it any less egregious.
Let’s start with the obvious here. We have an odd number of justices for a reason: to prevent ties. With an even number of justices, ties are much more likely to happen, meaning that the Supreme Court can effectively deadlock itself. And given how the current make up is four liberal justices and four conservative ones, that seems very likely to happen. Republicans have already paralyze the legislative branch with their posturing and obstructionist reactionism. If they are successful in their latest venture, then they will have paralyzed the judicial branch as well. Once again, Republicans are letting politics get in the way of actual governance.
Second, it’s the president’s constitutional authority to fill vacancies in the Supreme Court. In one of the greatest ironies in this administration, the party that thumps and invokes the Constitution the most are trying to prevent Obama from doing his constitutional duty. By preventing Obama from doing his job for the sake of politics, they are ignoring (or even defying) their beloved document that Democrats always seem to violate. Despite trying to protect the legacy of a supposed originalist and literalist, they are going against what the Constitution literally says. I hope the irony is not lost on those fellows.
Third, and most importantly, Republicans don’t even have to do what they’re doing to get someone they like nominated. I don’t know if McConnell, Cruz, and their kin realize this, but they have a majority in the Senate. This means even if Obama wanted to pack in an activist liberal, he couldn’t, because the Senate could just kill the nomination. At this point, if Obama wants to make good on his promise, he’ll need to nominate a moderate or a conservative to the bench. In other words, this posturing by the Republicans is totally unneeded, as they can still get a conservative justice despite Obama being in office.
The Republicans latest ploy is facepalm-worthy, not only because they’re prioritizing politics over the functionality of one of the country’s most vital institutions, but also because they can get their way without having to openly state their plans to block any nominee. This isn’t overplaying their hand, this is them revealing their hand before the dealer reveals his when the odds are already in their favor. In a sense, Republicans have already lost whatever they were trying to accomplish, as they’ve pretty much cemented themselves as a party of obstructionists, not conservatives. I don’t know whether I should be celebrating or shaking my head.
