The Corner

Law & the Courts

Obama Has Only Himself to Blame for SCOTUS Impasse

Today’s WSJ op-ed by Senator Cruz is a great articulation of the conservative position on Scalia’s replacement. Conservatives have looked for precedents, and Cruz points to important ones, but I’d like to focus on how unprecedented the Obama years have been. As Senator Cruz writes:

In “The Audacity of Hope,” then-Sen. Obama wrote that the Constitution “is not a static but rather a living document, and must be read in the context of an ever-changing world.”

The extreme positions that the Obama administration has taken in the Supreme Court—for example, its argument in Hosanna-Taborthat the government can interfere with a church’s choice of ministers—are further evidence of President Obama’s devotion to living-constitutionalism. The president’s appointments to the Supreme Court have proven just as devoted. After all, justices Sonia Sotomayor and Elena Kagan voted to invent a right to same-sex marriage.

Does anyone really believe that another Obama nominee would be different? The stakes are too high to allow President Obama, in the waning months of his final term, to make a lifetime appointment that would reshape the Supreme Court for a generation.

Democrats like to point out that they voted unanimously to confirm Justice Anthony Kennedy in the last year of Ronald Reagan’s presidency. But Reagan did something that Obama has not done: For all the controversies and political acrimony of his two terms as president, Reagan governed according to constitutional principles that were broadly accepted by Democrats and Republicans alike. Unfortunately (I would say) he did so without upsetting any of the essential tenets of the Progressive “living constitution.” The Rehnquist Court — which was Ronald Reagan’s constitutional legacy — reaffirmed the worst precedents of the New Deal lock-stock-and-barrel: from Steward Machine Co. v. Davis (1937) on the spending power, reaffirmed in South Dakota v. Dole (1987), to the awful commerce power decisions up to Wickard v. Filburn (1942), reaffirmed in United States. v. Lopez (1995). And it’s worth noting that the Democrats only confirmed Kennedy after killing the Robert Bork nomination, essentially because Bork implied that he might uphold the actual Constitution instead of the “living constitution” nonsense. 

From the point of view of a society’s constitutional choices, Reagan governed in a way that had broad acceptance. Obama has done no such thing. In ways I recently detailed (and many others), Obama has totally sidelined the constitutional principles that matter most to at least half the country. Even if there was no precedent whatever for an opposition party’s blocking the president’s nominee in an election year (or any year), I would advise the GOP leadership to make clear to Obama that he has utterly disqualified himself from making any more nominations to the Supreme Court as far the GOP in the Senate is concerned. On constitutional questions, Obama has shown the same contempt for Congress that he showed on the Iran nuclear deal.

Let future presidents be on guard. When Franklin D. Roosevelt moved to upset the constitutional apple cart with the New Deal, he had Congress and the people behind him. We are still struggling to undo the consequences today. Obama is no Franklin D. Roosevelt, thank heavens. 

Mario Loyola — Mr. Loyola is a senior fellow at the Competitive Enterprise Institute and director of the Environmental Finance and Risk Management program of Florida International University.


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