Scalia Replacement Commentary #2

Yesterday I pointed out that it was incumbent on the Republicans to take the message to the people in regard to the filling of the seat on the Supreme Court vacated with the passing of Justice Scalia.

The main message, though, for yesterday was that we should all grit our teeth and let the process play out, rather than intransigently declining even to hold Senate hearings on the nomination when Barack Obama inevitably comes up with someone.

If that is the main message, there is still a lot of subtext.  I am one who believes that presidents indeed serve for four years, not three, and they should go ahead and nominate someone and send the name to the Senate for what we call "advising and consenting", even if they have only a few months left in their term.  It is their job.

The real discussion point is one that did not exist 100 years ago.  Back 100 years, the Senate would have regarded its role not primarily a vetting of the opinions of the nominee, but validating that the judge had the experience and qualifications.  That's it.  Curiously, not a single Supreme Court nominee by a Democrat in 120 years (since Grover Cleveland) has been voted down by the Senate.  Apparently Republicans are historically a great deal more accommodating.

But I slightly digress.

The thing is, ever since the contemptible rejection by the Democrat-led Senate of the perfectly well-qualified Robert Bork in 1987, the grounds have shifted.  In my view, if Bork could be rejected on ideological grounds, then the same arguments pertain today on the other side; that is, the Senate may choose to evaluate and reject a candidate for the Supreme Court based on anything it feels relevant, even if the nominated judge has a perfectly sound background.

And that, friends, includes what the voters of the USA have most recently expressed as their viewpoint.  In other words, by totally rejecting the direction that Barack Obama and, particularly, Harry Reid, have tried to take the country by giving the Senate to Republicans in 2014, the voters of the USA have given the Senate a directive.

And it is totally valid for the Senate in 2016 to take that directive into consideration as it advises and consents on the candidacy of whomever Obama sends over.  If we couldn't have said that pre-Bork, well, we certainly can now.

That is today's point.  The Senate leadership and the most prominent senators -- specifically the presidential candidates, Marco Rubio and Ted Cruz -- need to start making the case in public and hammering it repeatedly.  The "case" I'm referring to is that ideology is important; that the USA soundly rejected Obama's leftist ideology by giving the Senate to the Republicans in the most recent election; and that they are justified in considering but eventually rejecting, on ideological grounds, any candidate out of step with the result of that election.

Most importantly, in making that "case", they need to use the Democrats' words against them.  There are at least 30 years worth of public pronouncements from leading Democrats in regard to Republican presidents' Supreme Court nominees, both approved and rejected.  Every single one of those comments, especially from Democrats still on the public stage like Reid, Schumer, Pelosi and Obama himself, needs to be carefully assembled and put in front of the American people.

Democrats are innately hypocritical -- they advocate for a socialistic economic structure that they know for a fact doesn't work, but keeps them in power.  They claim that their open-border advocacy is to be generous, when they know it is a blatant attempt to pack votes in.  The press repeatedly ignores their hypocrisy and declines to put two and two together on the front page.

Here, however, we don't have to rely on the press to call out the hypocrisy of Democrats who previously opposed Republican Supreme Court nominees on ideological grounds.  We don't need the press, because we're in the middle of a presidential campaign.  We already have the nation's attention.  We have a couple candidates who are sitting senators, both of whom are skilled debaters and persuasive speakers.

Marco Rubio and Ted Cruz need to put down their weapons for the time being, sit down and create a strategy wherein they are making the same point, that is, that the Republican-led Senate will act on Obama's nominee using as guidance the words of the Democrats themselves.  "Chuck Schumer said this in 2007 about so-and-so, and we will apply that in evaluating this nominee.  Barack Obama said this ... Harry Reid said this ...".

They should go back to 1987 and 1991 and dig out the statements made by Democrats in the confirmation hearings and in public about the candidacies of Robert Bork and Clarence Thomas.  Tell the nation in the beautiful forum that is the presidential campaign, and on the debate stage, that if the Democrats thought this, this and this applied then, well, it must still apply and they're, by God, going to consider those "wise words" today.

The press won't do it, of course.  But Rubio and Cruz sure can.

Copyright 2016 by Robert Sutton
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