The death of Justice Antonin Scalia has touched off a political firestorm in Washington, DC, on the presidential campaign trail and across the nation. Senate Majority Leader Mitch McConnell issued a statement Saturday, saying “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.”
Immediately after Sen. McConnell’s statement, Sen. Chuck Schumer, (D-NY), the many who will replace Harry Reid as the Democrats’ leader in the Senate in January, 2017, started threatening Sen. McConnell and Senate Republicans, saying that they’ll pay a political price for their obstructionism. Sen. Schumer said “The American people don’t like this obstructionism … a lot of the mainstream Republicans are going to say: ‘I may not follow this.'”
That’s a striking departure from what Sen. Schumer said when George W. Bush was president. Back then, Sen. Schumer said “We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove by actions, not words, that they are in the mainstream rather than we prove that they are not. So, in conclusion, in the end, these three questions provide the foundation for how we ensure that the court reflects what America wants rather than a diminishing clique of conservative ideologues wish for. There’s no doubt we were hoodwinked.”
Sen. Schumer is a politician playing to the public. That’s what politicians do. He’s trying to pressure Republicans into confirming an Obama nominee later this year. His wording is interesting. First, when Sen. Schumer talks about mainstream judges, he’s hoping to find judges interested in legislating from the bench. That’s who President Obama has nominated thus far. There’s no reason to think that he’ll deviate from that pattern.
Notice, too, that Sen. Schumer talked about “a diminishing clique of conservative ideologues.” Sen. Schumer’s wording isn’t accidental. It’s intentional. Sen. Schumer’s intent is to portray any justice like Justice Scalia or Justice Alito as outside the political mainstream. Justice Scalia understood what he fought for. He understood he wasn’t a super-legislator. His first responsibility was to the Constitution, not to the people. On July 29, 2012, Justice Scalia was interviewed by Fox News Sunday’s Chris Wallace. Here’s part of their exchange:
ANTONIN SCALIA, U.S. SUPREME COURT JUSTICE: Textualism means you’re governed by the text. That’s the only thing that is relevant to your decision. Not whether the outcome is desirable, not whether legislative history says this or that, but the text of the statute. Originalism says that when you consult the text, you give it the meaning it had when it was adopted. Not some later modern meaning.
WALLACE: So, if it was the Constitution written in the 18th century, you try to find what those words meant in the 18th century?
SCALIA: Exactly, the best example being the death penalty. When the electric chair comes in, it’s a new phenomenon. What did the Framers think of the electric chair? Who knows? There wasn’t any electric chair. But they did have the death penalty and they did impose death by hanging. So, what the originalists say is the electric chair more cruel and unusual than hanging was? And, of course, it isn’t because it was adopted to be less cruel, and the same thing with lethal injection.
It’s indisputable that Scalia’s opinions had political impact. However, the opinions themselves weren’t political in nature. Justice Scalia’s opinions were based on the statutes as written, not as he wished they’d been written. Justice Scalia’s opinions were based on statutory considerations, not political considerations. Sen. Schumer wants justices that put an emphasis on political considerations, not statutory considerations.
That’s because Democrats, generally speaking, try pushing the envelope with their legislative initiatives. Having a friendly court comes in handy when they can’t win their battles in the political arena. They prefer judges that give the legislative branch (and regulators) wide latitude.
That’s why this nomination is important to both political parties. That’s why conservative activists are already pressuring Sen. McConnell and Senate Republicans to not confirm President Obama’s nominee. Nothing less than the role government plays in people’s lives hangs in the balance..