If there were a doomsday clock for the American Republic, the second-hand moved a minute closer to midnight this weekend, with the untimely passing of Associate Justice, Antonin Scalia.
With progressives doing a seven-year “forced-march” to transform America, with a radical, politicized and empowered administrative state, and a president who pays little more than lip service to the Constitution and its hallowed separation of powers, the Supreme Court has been the de facto public institution of last resort to protect American liberty.
SCOTUS has done so imperfectly (most jarringly in upholding Obamacare), but has otherwise maintained a foundation in law that has served to restrain government. Indeed, during this current term, the Court was set to make vastly consequential rulings on the O-care contraceptive mandate, mandatory dues of public sector unions, the constitutionality of new abortion restrictions (requiring doctor certifications and hospital affiliations), and perhaps most important, the constitutionality of President Obama’s Executive Order on immigration.
Without Scalia, not only are the decisions of this term in doubt, but now the very future of the Court for perhaps decades, and thus the future of the Republic, are now dangerously exposed.
Appointed by President Reagan, Justice Scalia was not simply a brilliant legal mind. His service to the nation on the high court has become the source of a rich legacy of conservative legal thought that stands today as the intellectual foundation for the “original intent” of the Constitution. Unlike progressive lawyers and jurists who are flummoxed by constitutional requirements for super-majorities in order to change the document, and who therefore prefer to read their own intentions into our founding document to foment change at a rapid pace without bothersome citizen input, Scalia championed the simple words of the Founders, the sovereignty of the people and the states, and the limitations on federal authority.
Scalia was a one man counter-culture that once again gave respectability and seriousness to an original reading of the Constitution. Joined later by Clarence Thomas, Samuel Alito, John Roberts, and with the sometimes support of Anthony Kennedy, Scalia stood as a bulk ward against the relentless march of the Court’s leftists for ever expanding federal control and intrusion. Even in cases where Scalia voted in the minority, his dissenting opinions – particularly in Obamacare – lay bare the concocted progressive arguments that create new federal authorities and control.
Now, all of that Scalia has accomplished is at risk.
The first question, whether the Senate should consider a new nominee in an election year, is more straight forward than current, apocalyptic reporting suggests. With the exception of Anthony Kennedy (who had a unique confirmation, as it followed the failed Bork nomination and the withdrawal of nominee Douglas Ginsburg in 1987) no president has successfully nominated a justice to SCOTUS in an election year unless the presidency and the Senate were controlled by the same party.
Mitch McConnell has said that the Senate should not consider a Scalia replacement until after the November election, given the consequence of such a possible successor to change the direction of the Court. But that will not stop President Obama from nominating someone. Whether the nomination is bottled up in committee or eventually taken up and defeated by the 55 GOP votes in the Senate, the glide path should be clear that only the next president, and the next Congress will take up the vacancy, despite the furious politics that will play out over the next nine months.
The second question, however, is seminal.
Until now, the Republican race for president has been framed by grassroots support for Donald Trump as the anti-establishment candidate. No reasoned argument regarding Trump’s epic flip-flops on abortion, taxes, health care, government spending and the like have swayed supporters to look at more reasonable candidates. No poll showing a Trump nomination could cost the GOP the Senate is proof enough that Trump is the wrong candidate at the wrong time in the wrong party. Scalia’s death must serve as a real-life wake up call to these disenchanted conservatives and angry Republican voters.
The impact of an impulsive ballot for Trump last four years. But if that vote leads to defeat in November, taking the Senate with it, Hillary or Bernie get to shape the Court, not just immediately, but for decades after they are out of office.. And even in the parallel universe where Trump would somehow win to the White House, what proof exists in his wildly conflicting public views that gives assurance that Trump would select a nominee who could fill Scalia’s shoes?
It is nothing short of a cosmic roll of the dice.
Fact: The three remaining, reliable conservative votes on SCOTUS – Thomas, Alito and Roberts, were appointed by Bushes. Jeb Bush, Cruz or Rubio could be counted on to fill the Scalia seat with a seasoned experienced conservative. Not Trump, no matter how loud he shouts it.
Until this weekend the mood of the Republican primary electorate seemed to be that things were so bad, that it was risk free to embrace something new and untested, something that mouthed all the platitudes that gave voice to grassroots anger. But a presidential campaign is always about more than that. Scalia’s death makes the consequence real. The GOP must have a nominee with the experience, character, integrity, record and principles to be a conservative leader, and that candidate must be able to win in November.
Donald Trump is not that candidate. A vote for him dooms the last best hope of saving America from progressive envelopment. Voters should act accordingly.