Replacing Justice Scalia
July 28, 2016 at 4:25 p.m.
By Gary [email protected]
So now you have President Barack Obama poised to nominate someone to the U.S. Supreme Court during the last year of his term.
Frankly, I don’t see anything wrong with that.
And, even more frankly, I think Republicans are overplaying their hand by saying they won’t even consider a nomination from Obama.
The idea of waiting until after the next election some Republicans are floating is just plain bogus.
Besides, Republicans have the majority in the Senate and all it takes is a majority to confirm a Supreme Court nominee.
So what are they afraid of? Why not just carry out the process and let the cards fall? Surely, if they don’t like the nominee, they can muster enough no votes.
Supreme Court justice nominations always have fascinated me.
Take Scalia, for example. He was confirmed by a 98-0 vote in the U.S. Senate. Do you think there was anyone in the U.S. Senate who didn’t know what they were getting with Scalia?
The same could be said for Bill Clinton’s nominee, Ruth Bader Ginsburg, who was nominated by a vote of 96-3. Everybody in the chamber knew where she stood on the issues.
But then, with nominees who don’t seem to foster any more or less radical ideologies than Scalia or Ginsberg, there were bruising confirmation battles.
And there are a few interesting ironies.
President Obama filibustered George W. Bush’s nomination of Samuel Alito. Now he says he regrets that move. Probably because he wants to tell Republicans they shouldn’t filibuster his nominee.
Also, that same junior senator from Illinois made an impassioned speech on the Senate floor, expounding on a myriad of reasons why he could not vote to confer Bush’s nominee John Roberts.
That’s right, if Obama had his way, Roberts wouldn’t have been on the Supreme Court when it heard two cases regarding the Affordable Care Act – more commonly known as Obamacare.
In both cases, Roberts sided with the Obama administration. In the first case, on the constitutionality of the individual mandate to buy health insurance, the vote was 5-4. Roberts performed some pretty bizarre legal gyrations to save Obamacare by ruling that the individual mandate – while unconstitutional – could be achieved under Congress’ taxing authority.
Literally nobody saw that coming and it enraged conservatives.
The second case dealt with wording that seemed to say only states that formed exchanges could offer subsidies. The vote in that case was 6-3, but Roberts was still on Obama’s side.
The point is, in many cases, you can’t even hope to know how a nominee is going to pan out.
Justice Scalia was a powerful, intellectually accomplished conservative thinker.
He believed in a concept he called “originalism.” Basically, that meant that the Constitution should be interpreted according to the meaning of its provisions at the time they were adopted.
In his own words:
"The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."
I agree with that concept.
And so do most Republicans, which is a pretty good reason Republicans look dopey arguing the next president should nominate Scalia’s replacement.
Let’s think about this.
Article II, Section 2 of the Constitution, reads: “[The president] shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court.”
Faced with a case seeking to delay such an appointment because of an impending election, how do you suppose the late Justice Scalia would have interpreted the law?
Republicans should ask themselves, “What would Scalia do?”
The answer is obvious.
Certainly, today’s government must regulate things the founders never could have dreamed would exist – things like the Internet.
The founders never could have envisioned a government program like Social Security or Obamacare.
But I agree with Scalia that regardless of what cases come before the Supreme Court, the Justices should apply the Constitution as it was written, not as how it would have been written if it were written today.
In other words, don’t ask what the founders would have written had they known what was happening today, apply what they wrote to what’s happening today.
The idea is that major policy changes should be made through the democratic process and judges shouldn’t have too much power to make those kinds of decisions.
That’s pretty much the way I view the Constitution.
I believe the founders, when writing it, deemed it the best way to run a nation and I believe courts and policymakers should strive not to stray from it.
(Like arguing a sitting president shouldn’t nominate a Supreme Court Justice, for example.)
As times change, the constitution changes through the democratic process – amendments like the 13th which ended slavery or the 19th amendment giving women the right to vote.
It’s always seemed strange to me how “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” could be interpreted to mean you can’t have a nativity on the courthouse lawn.
Or why it’s so hard to understand “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”
Nobody has trouble with the meaning of the word “people” anywhere else in the constitution.
Does “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” seem to promote the creation giant federal government programs and bureaucracies?
The commerce clause gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” But somehow that clause has been used to give Congress the power to regulate virtually everything.
In all these examples, I believe the constitution was interpreted to mean “what current society ... thinks it ought to mean” instead of “what it meant when it was adopted."
I just hope whoever replaces Justice Scalia has the same level of respect for and deference to the U.S. Constitution.
This country needs that right now.
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So now you have President Barack Obama poised to nominate someone to the U.S. Supreme Court during the last year of his term.
Frankly, I don’t see anything wrong with that.
And, even more frankly, I think Republicans are overplaying their hand by saying they won’t even consider a nomination from Obama.
The idea of waiting until after the next election some Republicans are floating is just plain bogus.
Besides, Republicans have the majority in the Senate and all it takes is a majority to confirm a Supreme Court nominee.
So what are they afraid of? Why not just carry out the process and let the cards fall? Surely, if they don’t like the nominee, they can muster enough no votes.
Supreme Court justice nominations always have fascinated me.
Take Scalia, for example. He was confirmed by a 98-0 vote in the U.S. Senate. Do you think there was anyone in the U.S. Senate who didn’t know what they were getting with Scalia?
The same could be said for Bill Clinton’s nominee, Ruth Bader Ginsburg, who was nominated by a vote of 96-3. Everybody in the chamber knew where she stood on the issues.
But then, with nominees who don’t seem to foster any more or less radical ideologies than Scalia or Ginsberg, there were bruising confirmation battles.
And there are a few interesting ironies.
President Obama filibustered George W. Bush’s nomination of Samuel Alito. Now he says he regrets that move. Probably because he wants to tell Republicans they shouldn’t filibuster his nominee.
Also, that same junior senator from Illinois made an impassioned speech on the Senate floor, expounding on a myriad of reasons why he could not vote to confer Bush’s nominee John Roberts.
That’s right, if Obama had his way, Roberts wouldn’t have been on the Supreme Court when it heard two cases regarding the Affordable Care Act – more commonly known as Obamacare.
In both cases, Roberts sided with the Obama administration. In the first case, on the constitutionality of the individual mandate to buy health insurance, the vote was 5-4. Roberts performed some pretty bizarre legal gyrations to save Obamacare by ruling that the individual mandate – while unconstitutional – could be achieved under Congress’ taxing authority.
Literally nobody saw that coming and it enraged conservatives.
The second case dealt with wording that seemed to say only states that formed exchanges could offer subsidies. The vote in that case was 6-3, but Roberts was still on Obama’s side.
The point is, in many cases, you can’t even hope to know how a nominee is going to pan out.
Justice Scalia was a powerful, intellectually accomplished conservative thinker.
He believed in a concept he called “originalism.” Basically, that meant that the Constitution should be interpreted according to the meaning of its provisions at the time they were adopted.
In his own words:
"The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."
I agree with that concept.
And so do most Republicans, which is a pretty good reason Republicans look dopey arguing the next president should nominate Scalia’s replacement.
Let’s think about this.
Article II, Section 2 of the Constitution, reads: “[The president] shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court.”
Faced with a case seeking to delay such an appointment because of an impending election, how do you suppose the late Justice Scalia would have interpreted the law?
Republicans should ask themselves, “What would Scalia do?”
The answer is obvious.
Certainly, today’s government must regulate things the founders never could have dreamed would exist – things like the Internet.
The founders never could have envisioned a government program like Social Security or Obamacare.
But I agree with Scalia that regardless of what cases come before the Supreme Court, the Justices should apply the Constitution as it was written, not as how it would have been written if it were written today.
In other words, don’t ask what the founders would have written had they known what was happening today, apply what they wrote to what’s happening today.
The idea is that major policy changes should be made through the democratic process and judges shouldn’t have too much power to make those kinds of decisions.
That’s pretty much the way I view the Constitution.
I believe the founders, when writing it, deemed it the best way to run a nation and I believe courts and policymakers should strive not to stray from it.
(Like arguing a sitting president shouldn’t nominate a Supreme Court Justice, for example.)
As times change, the constitution changes through the democratic process – amendments like the 13th which ended slavery or the 19th amendment giving women the right to vote.
It’s always seemed strange to me how “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” could be interpreted to mean you can’t have a nativity on the courthouse lawn.
Or why it’s so hard to understand “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”
Nobody has trouble with the meaning of the word “people” anywhere else in the constitution.
Does “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” seem to promote the creation giant federal government programs and bureaucracies?
The commerce clause gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” But somehow that clause has been used to give Congress the power to regulate virtually everything.
In all these examples, I believe the constitution was interpreted to mean “what current society ... thinks it ought to mean” instead of “what it meant when it was adopted."
I just hope whoever replaces Justice Scalia has the same level of respect for and deference to the U.S. Constitution.
This country needs that right now.
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