Politics & Policy

Justice Scalia’s Death Isn’t a Time for Political Opportunism

Mariano-Florentino Cuéllar (Image via Hoover.org)

Of all the examples of shameless triumphalism that we have seen on the left since the death of Antonin Scalia, the hope that President Obama will thwart the GOP’s capacity to “advise and consent” by nominating a racial minority and then demagoguing the approval process is by far the most transparently objectionable. 

Today, Daily Beast writer Michael Tomasky proposes that Obama should pick California supreme-court justice Mariano-Florentino Cuéllar to fill Scalia’s seat. Cuéllar is a naturalized Mexican American whose curriculum vitae boasts four degrees from prestigious universities and jobs in the Treasury Department, the White House, and teaching law at Stanford. His qualifications, Tomasky writes, position him high on the list of potential nominees. 

Cuéllar garnered unanimous confirmation to the California supreme court after his 2014 nomination by Governor Jerry Brown, and was one of two Brown-nominated appointees who were considered instrumental in shifting the California court further left. Should Obama nominate Cuéllar, Tomasky avers, “Oh, what fun it shall be.” 

And why is that? The argument goes like this:

1. Senator Mitch McConnell (R., Ky.) — and most of the Republican presidential candidates — have vowed Republican opposition to any Obama nominee. But Obama has eleven months remaining in his presidency, nominating a justice is his prerogative, and modern precedent doesn’t tolerate an even number of justices on the bench. 

2. After Obama nominates Cuéllar, Americans will learn of his biography, talent, and credentials, and his Mexican heritage will be an irresistible draw for most Hispanic Americans. 

3. Republican National Committee head Reince Priebus will cower while pasty Republican senators and racist nominee Donald Trump, or inauthentically Hispanic nominee Marco Rubio or Ted Cruz, fail to dissuade the infatuated American public of Cuéllar’s appeal.

4. With eminently qualified Cuéllar still awaiting his appointment on Election Day, Republicans will lose too many of the 33.6 million Latino voters, and the Democratic nominee will sail to victory.

#share#This approach is a bitter cocktail of racial politics and cynical partisanship. In Tomaksy’s view, what Ted Cruz or anyone else says about the precedents for a delay should be steadfastly ignored, as should the Senate’s prerogative to filibuster. And what better way to achieve that than to play a divisive game? Republicans are incorrigibly racist, Tomasky assumes, so obliging them to oppose a minority for whatever reason will prove that point to the public. After all, the people couldn’t possibly comprehend that Republicans oppose Cuéllar’s appointment out of concern for the integrity of the Constitution. 

It has long been clear that the Left’s racial-identity politics are a thin veil over its preference for will-to-power, but it’s not always the case that the veil drops this dramatically. 

This is no way to keep a republic. In Federalist No. 78, Alexander Hamilton described judges as the “bulwarks of a limited Constitution” whose political independence is 

requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government.

I wonder if racial division qualifies as “effects of those ill humors” and if people such as Tomasky qualify as “designing men”?

Opposition to judicial nominees is a bipartisan tendency. In 2007, with 19 months left in George W. Bush’s presidency, Senator Chuck Schumer (D., N.Y.) told the Senate not to approve Bush’s Supreme Court nominees. Senator Schumer is now denouncing Senator McConnell as an “obstructionist.” In fact, Senator Schumer himself set the precedent for filibustering judicial nominees. Is he prepared to add a partisan race-fight to the damage he’s already done?

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