Scalia’s Replacement and the Election

supreme court

Of course, the big news this past week or so is the very sad passing of a legal giant, Antonin Scalia, Justice on the Supreme Court (SCOTUS).

There’s a political knife fight brewing over replacing him, with Senate Republicans led by Mitch McConnell at this point vowing to block any Obama nomination because he has so little time left in office, while Obama and his minions – including a sycophantic mainstream media – are clamoring that to do so is to subvert the intent expressed in the Advise and Consent Clause of the Constitution.

Indisputably, the Republicans have the authority by virtue of their control of the Senate to proceed however they wish, including blocking Obama’s nominees from confirmation. It’s borkalso indisputable that the Dem/socialists’ ginned up “outrage” is laughably hypocritical. After all,  when Ronald Reagan nominated Judge Robert Bork to SCOTUS, his confirmation was blocked on purely political grounds by a Senate Dem/socialist lynch mob led by Ted Kennedy, and they thought that was just perfectly fine. In fact, they took great pride in it.

Even more hypocritical is that when Bush 2 nominated Sam Alito to SCOTUS back in 2006, a little known Senator from Illinois, one Barrack Hussein Obama, participated in a filibuster attempt to block the nomination. It sure seems to me that what’s good for the goose is good for the gander.

At issue is the fact that SCOTUS has been pretty evenly divided ideologically for quite some time, with many cases being decided by a 5 – 4 vote, Kennedy being a “wobbler” who vacillates between originalist (“conservative”) and living constitutionalist (“liberal”) positions. Scalia has always been a fervent originalist. In his absence the Court is evenly divided between the two camps (always with the caveat that Kennedy’s something of a wild card, and there’s the occasional Roberts hiccup, too).

So, the argument goes, in a year in which the presidential election is so contentious, particularly on divisive fundamental philosophy, and we’re so close to the actual election, any SCOTUS appointment should be delayed until the newly-elected President can make his or her own choice.

I think there’s merit to that argument, but frankly I don’t really care about it. As far as I’m concerned, the Constitution gives the approval power to the Senate, the GOP controls thecongress control Senate, and they don’t need any rationalization to block Obama’s appointments if that’s what they want to do. There’s plenty of precedent, as I’ve already pointed out, and there’s no way such a rabid leftist zealot as Obama is going to make any nomination that’s going to be any good for this country. Period.

But there’s another aspect I don’t hear anyone talking about when considering the upcoming election and SCOTUS nominations.

Scalia was 79 when he died. But Ginsburg, a hard-Left zealot, is 82. For that matter Breyer, another doctrinaire Leftist, is 77. It’s quite conceivable that either or both could retire or die during the first term of the next President. At 79, Kennedy could very well be in play, too.

That means, assuming that Obama can’t successfully replace Scalia, that the next President could very well be able to appoint four SCOTUS Justices. So let’s do some math and see how this could play out.

Let’s assume that over the next President’s first term three more SCOTUS seats open up, for a total of four. The current ideological split, in Scalia’s absence, is essentially 4 – 4. If the Dem/socialists win, they can appoint 4 leftists, giving them a 6 – 3 (Roberts, Thomas, and Alito) majority. If the GOP wins, they might also get to appoint 4 conservatives, giving them a 7 – 2 (Kagan and Sotomayor) majority.

Anybody have any questions about how important this election is? It’s way past time for the GOP to get its act together, stop screwing around, and – for once – get it right.

 

 

©Brian Baker 2016

(Published in my local newspaper, The Signal, on 2/26/2016: http://www.signalscv.com/section/33/article/149114/)

 

 

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