I would like to add an energetic “Amen!” to our editorial today on the death of Antonin Scalia and the necessity of preventing Barack Obama’s replacing him with another left-wing activist. Jim Geraghty is right to point out that Republicans need make no argument other than the ones Democrats such as Charles Schumer were making at the end of the Bush years. They need do nothing more than Senator Barack Obama did in filibustering Sam Alito. There are plenty of other examples.
The ur-example, of course, is the case of Robert Bork. The Democrats’ craven, despicable, lying campaign against Bork announced the arrival of Supreme Court confirmation hearings as bare-knuckle political brawls. There was no question that Bork was well-qualified for the position – he was one of the great legal minds of his time. Democrats simply did not like his view of the law and the Constitution.
Bork’s “ideology,” like Scalia’s, consisted of a belief that the law saws what it says and nothing more. Scalia often is described as a “conservative,” but he was a “conservative” who sided with flag-burners, because that’s what the law demands, and with various and sundry unattractive criminal defendants, because the law was on their side, too. He treated the First Amendment the way he treated the Second: as a series of words with a particular meaning.
The Kagans, Sotomayors, and Ginsburgs of the world operate under no such restraints. Kagan lied about her views on gay marriage in order to enact them from the Supreme Court. Ginsburg will find left-wing results on any question regardless of what the law says. Sotomayor is still doing her “wise Latina” routine.
The belief that the Constitution says whatever it is that Democrats want it to say at any given moment is illegitimate as a legal philosophy for Supreme Court justices. Democrats long ago established that ideological disagreement is a perfectly valid reason for blocking a Supreme Court appointee. Senator Schumer spelled out the political case for preventing a lame-duck president from filling a vacancy. Senator Obama demonstrated the technique.
Your rules, gentlemen. Your rules.
Republicans should indeed hold steadfast. If Obama nominates Randy Barnett, we can have a moment of bipartisanship and sing a chorus of “Kumbaya.” Short of that, the answer should be No, no, no, no, and Hell, no.