I
understand there is no joy in Mudville, that the mighty Scalia’s light’s gone
out. Some of my conservative friends are just that, conservatives; others are
outright Obama haters (if he died, they’d complain that he
didn’t do it soon enough AND that he stuck them with Joe Biden). Assuming that the
2016 election result will be more to their liking, I understand them cursing
their bad luck in the timing of Scalia’s involuntary departure.
I even
understand the call to delay the appointment, at least from a political and
philosophical perspective. But such a position is an epic fail of the smell
test. You will never convince me that if the situation were reversed, that if
it were the end of a conservative presidency facing the death of a liberal
justice, there wouldn’t be screams of outrage and ridicule were liberals to call for delay.
Senator Mitch McConnell had no trouble voting to confirm Anthony Kennedy in
1998, the last year of President Reagan in office.
Yes, I
know that technically Kennedy was nominated in late 1997, but in terms of the
timing for the sessions of the Supreme Court, the 2-3 month difference means
nothing; he didn’t start hearing cases until the 1998 session, just as whomever
Obama appoints won’t start hearing cases until the 2016 session, assuming
Senate Republicans don’t subvert the process. If they do, it won’t be until
2017 that the court has a full roster and a whole year will be spent one
justice short.
Again, I
get politically why conservatives and Republicans might see this as a good
thing. And I suppose it might be for them, but only in the short term. (Or maybe not – click this link.) It seems
to me, however, that such a move increases the acceleration of the decline of people’s
faith and confidence in a government that is supposed to serve the citizens,
not whatever political party has power at the moment.
Such
politics of convenience and expediency over principle would have offended even
Justice Scalia, I think, because he was, himself, a man of principle. I
disagreed with the foundation of his principle (original intent, or textualism,
as he came to call it), and would suggest that the existence of the elastic
clause in the Constitution provides evidence that the framers expected it to be
a living document, that they recognized the country would grow and change in
ways they could not imagine and that the government needed the flexibility to
grow and change with it. That legacy was part of their genius. I also think he
was imperfect and inconsistent on when he chose to apply that principle.
But
principled he certainly was. The attempted perversion of the process for filling vacancies
(purely for anticipated political gain) by those calling for delay is not.
