Struggling After Scalia

Forgive me.

I have immense inner conflict about the filling of the Supreme Court vacancy left by the passing of Associate Justice Antonin Scalia over the weekend.  I know there is a great deal of discussion from the Republican candidates and from the Senate Majority Leader, Mitch McConnell, about not acting on any nominee from Barack Obama to fill the seat.

I will restate my conservative bona fides here before I go forward.  There are over 340 posts on this site for all to see, and anyone who has read them and doubts my credentials, well, send me an email and we'll debate that.  I thought Antonin Scalia would be way up in the list of the greatest jurists ever to sit on that Court.  Still do.

And now I will say that Barack Obama should go ahead and nominate someone to sit in that Supreme Court seat.  How can he not?  It is his Constitutional duty to do so, and while it is funny to hear him invoke the Constitution in talking about it, as if he, you know, had ever read it or cares a bit about it, it is still his job, and he should do it.

The Senate, in turn, should do its job.

Now, once upon a time, the Senate's job was "advise and consent."  While it still is the case, there were 200 years of precedent (i.e., before "bork" became a verb), when even if the Senate disagreed with the judicial philosophy of the nominee, it would still grudgingly confirm them if they were qualified.

Since the time of Robert Bork, an eminently qualified, distinguished jurist rejected by a Democrat-majority Senate, a nominee's philosophy, not their resume, has become a "legitimate" reason for rejection.  Well, that's the case with a Democrat Senate, at any rate.  It never should have happened, and Robert Bork should have had a long and distinguished career on the Supreme Court.

But since then, there is ample precedent for the Senate to vote to consent to -- or reject -- the candidacy of a nominee based strictly on judicial philosophy.  Too liberal?  Too many decisions that sound like the Core Four leftists now on the Court?  Sorry, you're out.  You've been borked.

That's really my point.  The president should do his job, and the Senate should as well.  The president should nominate whomever he wants to, someone who reflects his judicial "philosophy" if he so chooses.  And then the Senate should take its sweet time, go over every available decision of the nominee, carefully evaluate temperament, opinions, writings and background.  That should take months.  Months, I tell you -- the decision is that important.

And then, come October or November -- let's say November, maybe after a Republican has become president-elect -- the Senate should vote to reject the nominee, as is its right.

I have watched a number of Senate confirmations of Supreme Court nominees in my life.  I have cringed when Republican senators roll over and let a nominee slide who is every bit as leftist as Bork and others were conservative.  Well, the Republicans have the Senate now.  And every single senator in the caucus should have the courage to act as their Democrat counterparts did with Bork, and reject Obama's nominee -- after a lengthy process, of course -- based on his or her being out of step with the USA.

Since Barack Obama was elected in 2008, every subsequent national election has been a massive repudiation of his philosophy.  He has won only the presidential election in 2012, and that not on his philosophy, but his personality and his race.  The USA promptly rejected his philosophy and incompetence again in 2014 by giving both houses of Congress to his opponents.

But no, I don't believe that Obama should stay his hand; he should find a candidate and make a nomination.  And I think the Senate is then justified by recent history and precedent by taking plenty of time to evaluate the nominee, and then being willing to reject the candidate solely on opinions.  Just as the Democrats have done in recent memory.

There is another court out there, the one called "public opinion."  That one is hard, as it is subject to the spin of a leftist media.  They will be all over the Senate, particularly if the nominee is a woman or a minority (or both).  So it is up to the most articulate senators -- and the presidential candidates, who now have the attention of the populace -- to make the case, to show the recent precedent.

It is up to them to point out the hypocrisy of people like Sen. Chuck Schumer, who is even this week conveniently forgetting how he felt that George W. Bush had no right to nominate a candidate to the Supreme Court in 2007.  It is up to them to point out that we are long past the "first of this race ..." garbage.  It is up to them to point out that the Democrats indeed were the ones who brought philosophy, not temperament, competence and experience, into the confirmation process.

We need to grab the public's ear, and quickly.  But we should let the system operate as the Constitution tells us to.  And "Sorry, but after much deliberation and thought, we have rejected your nominee" is a lot better than "You're in your last year of your last term, you should not make a nomination" or a long filibuster.

You don't need to do that, senators.  Don't need to rush.  Just receive the nomination, deliberate and reject.

The way the Constitution allows.

Copyright 2016 by Robert Sutton
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