The legal world is still reeling from the death of one of most brilliant jurists who ever sat on the Supreme Court, Antonin Scalia. A Reagan appointee, Scalia is singularly responsible for defining, teaching, and advocating for a school of thought that came to be known as “originalism.” Today the term and what it stands for has made a place for itself as a major, accepted theory of modern jurisprudence. It is no surprise, therefore, that the battle lines are drawn. Opposing points of view are determined ram through to the Court a justice who is the opposite of Scalia, They are doing this by using outrageous claims, and these must be fact checked.
However, it is essential to define the term “originalism.” At its most basic level originalism refers to the belief and conviction that only when the Court is clear about what the Framers intended when they first wrote the Constitution can there be any accurate decision on the cases that come before it. Scalia insisted that this, at the very least, is the primary function of the Court — to determine what the Framers intended originally, and then apply that original intent to its decisions today. In short, Scalia did not believe the Court should veer away from the original intent of the Framers, nor should it make law out of thin air whether it can be justified by the intent of the Framers or not. It was the latter conviction that pitted Scalia against Chief Justice John Roberts in the first Obamacare case. Scalia’s scathing assessment of his colleagues in his dissent is now legendary. With acerbic sarcasm Scalia mocked the majority opinion, stating that if the Court can force people to buy insurance, then what is to prevent it from forcing them to buy broccoli. This, of course, fell on deaf ears as Roberts joined with the liberal progressives to allow Obamacare to stand. Even Anthony Kennedy saw the folly of this stance as he joined Scalia, Alito, and Thomas in the minority camp.
Scalia may have failed to convince enough of his colleagues on striking down Obamacare, but he has a ton of decisions to his credit during this long tenure on the Court. Had it not been for Scalia, Americans would probably be disarmed by now by their government. Scalia was able to convince a majority on the Court that the Second Amendment protects the individual’s right to own and keep firearms.
Thus, Scalia’s replacement on the Court is of paramount importance. Those with a vested interest in getting another dangerous progressive on the Court claim that the new justice must be chosen immediately. That would wrong. The Constitution does not specify any time frame in choosing a successor. Why? The answer is simple according Constitutional scholars. The president is not and never has been entitled to whoever he wants on the Court. When the president submits a nominee for the Court, that person must go before the Senate Judiciary Committee for questioning. There is no specified time frame for the Senate to do its work in this regard. It could take months for this vetting process, and even then there is no guarantee the nominee will be approved by the Senate. Therefore, nothing about this process is set in stone or placed on a time frame. And unless the Senate approves the president’s nominee, then it is back to the drawing board. A different nominee must be submitted. This could take the rest of the year. Obama may submit nominations but that is far from any guarantee his nominees will be approved.
And then there is the issue of getting the nominee on the docket for hearings before the Senate Judiciary Committee. There is no process specified by the Constitution concerning this aspect of vetting the nominee. The Senate Majority Leader has broad discretion in this area. He may place the matter on the docket months from now since this is an election year. Or he may decide not to place the issue on the docket at all until after the election. This is his decision and his alone.
Harry Reid, however, who was the Democratic Majority Leader until Republicans took back the Senate, was notorious for refusing to place on the docket any issue the Republican led House sent to him. He even refused to consider or pass a federal budget although it is required by the Constitution. Republicans sent him their approved bills but Reid sat on them and never gave them a hearing. Democrats in Congress were also notorious for refusing to consider Bush nominees to the federal courts and would often filibuster these nominees. Yet Reid chimed in over the weekend to claim Senate Republicans have a constitutional obligation to move quickly on this issue. Aside from the fact that he is factually wrong, a strong case can be made that Reid never cared about the Constitution at all on matters such as these when he was in control of the Democrat controlled Senate.
Further, Republicans have the right to filibuster any Obama nominee to the Supreme Court, just as Democrats used the filibuster to their advantage a few years ago. And this is not to mention the fact that traditionally Supreme Court nominees are not submitted during presidential election years. In terms of practicality alone, it would be difficult to manage such a major undertaking when the next few months will be practically consumed by the presidential election, not to mention Senate and House races.