Supreme Court Justice Antonin Scalia cast himself as an “Originalist” with the unique capacity to divine the intent of The Founders as they wrote the Constitution. He approached the Constitution as a Catholic would the Bible, and his ability to channel the Founders’ voices as one would claim to commune directly with Jesus. But this was a front for his activism in reshaping America and tipping the balance in favor of his political agenda.
Scalia is responsible for the worst decisions since Dred Scott, starting with Bush v Gore, in which he disregarded the Constitution in order to install George W Bush as President knowing it would thereby reshape the Supreme Court and judiciary for 50 years; in Citizens United, McKutcheon, the Heller decision which for the first time elevated an individual’s right to possess a gun (where in “well regulated militia” is the unlimited right for an individual to possess a gun?); Voting Rights, Hobby Lobby. In every area of women’s rights, civil rights, voting rights, worker rights, health care, environmental protection he shaped decisions to achieve a political end. And it would have been worse -especially for a woman’s right to make her own reproductive and health decisions – were it not for an occasional swing vote which would deny him his decision, which he would condemn with vicious dissents. He branded any decision that he disagreed with as violating this artificial “originalist” construction, and any decision that was “progressive” or “liberal” as “activist.
He is basically responsible for empowering the Right Wing Majority in dismissing, ignoring and overturning precedent, which is something John Roberts promised he would never do during his own confirmation hearings.
Scalia is routinely praised for his insistence on being true to the Founders’ intent. That is an artful dodge by a skilled lawyer who can twist any bit of legalese to justify an argument. In fact, the Founders knew they were engaged in a “grand experiment”, in which the people (or at least a fractional segment of citizenry, excluding white men who did not own property, women, slaves and Indians) would be empowered to change their government in a defined way. The Founders knew they were fallible and they knew they already had to compromise core principles in order to gain consensus because they were already deeply divided between wanting a strong central federal government (Hamilton), and a decentralized Republic (Jefferson). They knew the Constitution was not perfect, just as they were not perfect people – that is why they enabled amendments. They may not have been able to imagine assault weapons, computers, or stem cells, but they knew that the Constitution needed to adapt to change. That’s why they created an amendment process. They knew more than anyone – especially Marco Rubio – that the Constitution by necessity was a “living document” rather one set in stone.
Originalist? or Calculating Activist? If Scalia were a true “originalist” and not an activist in pursuit of shaping America into the incarnation of a political agenda, he would start with whatever gets you closer to “We the People”, “equal protection,” “one person, one vote” instead of saying that the Constitution does not explicitly guarantee “one person, one vote” (Bush v Gore).
He could defend and uphold the concept of a Unitary Executive when hearing a case against George W. Bush for overturning habeus corpus and the right to trial, indeed torture, when a Republican was in office, but then deny President Obama’s ability to implement an executive order on how undocumented immigrants would be handled. He overturned Congress’ carefully considered reauthorization of the Voting Rights Act pronouncing it somehow embodied “racial entitlement”. In Hobby Lobby, he established the rights of a corporation to exercise religious conscience over a woman’s right not to be discriminated against in the workplace and to make her own health decisions. He clawed back the Citizens United case in order to issue an unprecedented ruling that corporations are people and cash is speech. And just last week, the right wing activist Republican majority again broke all precedent in halting implementation of the EPA’s rule limiting global warming pollution from power plants (a plan in which states were free to come up with their own plans to comply with the standards, thereby threatening the international climate agreement as well as setting back the planet’s ability to mitigate the disastrous effects of climate change) even before the case was fully adjudicated by a lower court and come before the Supreme Court.
The announcement of Scalia’s passing had not even faded on the wind when Senate Majority Leader Mitch McConnell said, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
“Sen. McConnell seems to have forgotten that the American people made their voices heard in 2012 — when we re-elected Barack Obama. Nearly 67 million Americans agreed that this President is the person they trust to make decisions like these,” wrote Amy K. Dacey, Chief Executive Officer of the Democratic National Committee.
“Mitch McConnell and the Republican presidential candidates who are standing with him may not like it, but unfortunately for them, it’s how our system works. It’s right there in the Constitution. And anyone who believes the sitting President should not fill this vacancy to allow our highest court to carry out its duties is putting politics ahead of the rule of law. Plain and simple.
“If Mitch McConnell wants to prove he and his fellow Republicans can be trusted to make the Senate work as he claims they can, he’ll think twice about this cynical and irresponsible inaction. Otherwise, we can thank him come November for giving voters all across America another compelling reason to vote for leaders who will play by the rules and do the work we expect from them.”
There is nearly one-fourth of a full presidential term available to President Obama, who as President has the authority, the power, the responsibility and the obligation to nominate a replacement for Scalia. It is one of the key functions of a President, just as passing a budget is a key function of Congress, and one of the key criteria that voters should be taking into account when voting for a President (as the Republican candidates emphasized during the South Carolina debate, mere hours after word of Scalia’s death). What would Scalia, who advocated for a Unitary Executive under a Republican President, say to the Republicans throwing down a gauntlet in refusing to consider any candidate at all? Where in the Constitution does it say that the President’s office should be vacated and ineffective for the last year of a term?
Indeed, that has been the policy of the Republican-controlled Senate and House ever since they took over, and from the first day of Obama’s Presidency. It is why Obama has had to issue executive orders on immigration, gun safety, overtime pay, minimum wage, parental leave – indeed all the things that the president is actually being sued for in other examples of unprecedented tactics by a ruthless, unscrupulous Republican party.
Republicans view politics as nothing more than a football game. But even a football game isn’t stopped by the leading game 20 minutes before the end. And politics is not a game. Real people, real lives are impacted every day by the decisions the Supreme Court makes. This Right Wing Majority Court has overstepped its authority to insure that laws passed by Congress comport with Constitutional protections.
“Leaving a seat on the Supreme Court vacant for an entire year is utterly unprecedented. In all of U.S. history, the longest its ever taken for the Senate to vote on a nominee is 125 days,” writes Eddie Kurtz of the Courage Campaign. “They are effectively trying to limit President Obama’s second term to just three years — while leaving the Supreme Court shorthanded for well over a year.”
And now, if the 4-4 split is maintained, and there is no majority, it means that decisions rendered by lower courts will stand. Several critical cases are already pending before the Supreme Court, including:
- The latest attack on abortion rights in Texas
- President Obama’s Clean Power Plan to fight climate change
- The president’s action to allow the “Dreamer” undocumented immigrants to stay in our country
- The right-wing attack on the right of teachers and other workers to form strong unions
- An extremist proposal to roll back voting rights by ending the “one person, one vote” rule
- A Texas case that would limit affirmative action in higher education
If Republicans get their way, the vacancy would not be filled probably until June 2017, the earliest, experts say, when a new justice could be nominated and confirmed by the next administration. That’s two terms of the Supreme Court.
That works well for Republicans who were robust in getting their judicial nominees to overwhelm the courts during Reagan, Bush 1 and Bush 2 administrations, and have done nothing but stonewall during Clinton and especially Obama administrations. They are trying to do the same now, hoping to wait out the clock until they get (what they hope) will be a Cruz, Rubio, Trump presidency, who use Scalia and Clarence Thomas as their “model” for the ideal justice.
But that doesn’t work well for the more than half of the country who elected Obama by the most number of votes any President has ever received. Too often, we have been denied the agenda and the fulfillment of promises Obama made, for which he was elected. Climate action, immigration, women’s health care, workers rights, voting rights cannot wait.
Activists need to really protest against the Republican Senators – especially Charles Grassley (Republican from Iowa, chair of the Judiciary committee) who is up for reelection and could possibly be toppled in a wave election, whether that is Bernie Sanders bringing out the protest vote, or if progressives realize what is at stake, come out for Hillary Clinton if she is the nominee, instead of registering another protest vote/non-vote.
Activists from every quarter – working families, women’s reproductive freedom, environmentalists and climate activists – need to focus on this singular issue to force Senate Republicans to hold hearings and confirm Obama’s Supreme Court nominee. Because there is nothing that Bernie Sanders is selling in his populist message, starting with campaign finance reform that can take place with a court dominated with the likes of Scalia. If Sanders is right about what he says is a political revolution, this is where it should start, not wait until November.
Here’s the list of who is up for reelection and therefore vulnerable: Lee (Utah), Paul (KY), Crapo (ID), Lankford (OK), Shelby (AL), Scott (SC), Vitter (LA), Johnson (WI), Barrasso (WY), Toomey (PA), Boozman (AR), Moran (KS), McCain (AZ), Coats (IN), Thune (SD), Isakson (GA), Burr (NC), Blunt (MO), Hoeven (ND), Portman (OH), Ayotte (NH), Kirk (IL), Murkowski (AK). Also, Indiana (Coats) and Florida (Rubio) are in play.
Indeed, perhaps there is a bargaining chip that President Obama could use (for the first time in his presidency): he could threaten to make a recess appointment.
“Republican obstruction has its limits. If Democrats retake the U.S. Senate this fall, they will be able to confirm President Obama’s nominee before a new president is inaugurated. President Obama can even make a recess appointment later this year,” says Charles Chamberlain, Executive Director of Democracy for America.
“This is a major cross roads in American history. The future depends on getting this appointment right. Along with other matters, such as overturning Citizens United, these cases remind us just how important it is that the next Supreme Court justice share America’s progressive values and rules the right way on these issues,” “We have an historic opportunity to have a progressive majority on the Supreme Court for the first time in more than 25 years.”
President Obama was so gracious in honoring Scalia’s passing, complimenting him saying, Scalia “was a larger-than-life presence on the bench — a brilliant legal mind with an energetic style, incisive wit, and colorful opinions. He influenced a generation of judges, lawyers, and students, and profoundly shaped the legal landscape. He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law.” One wonders of a Republican would be as gracious if a liberal justice passed away.
But Obama deftly added, “I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our Founders envisioned.”
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