The Corner

Eight Thoughts On Scalia

I’m still a little stunned by the news that Justice Antonin Scalia, perhaps the living public official I’ve most respected and admired in my adult life, has died. I respected Scalia for all the obvious reasons. As a legal thinker few could hold a candle to him, as a legal writer even fewer, and as an intellectual legal writer of consequence, he stood alone in my lifetime (Had Robert Bork been confirmed to the Supreme Court, as he should have been, he might have given Scalia a run for his money on both counts). But I admired Scalia for other reasons. He was a happy man. He was a family man. He was a joyful warrior who had no problem being friends with the “enemy” outside office hours, as it were.

In a better time, we wouldn’t immediately subject this news to public partisan speculation and handicapping, but these are the times we live in. (And I think Scalia would understand. He was, after all, a loyal National Review reader and subscriber.) So a few thoughts in no particular order:

1. By now it is not simply conventional wisdom, but adamantine dogma, that Republicans should hold off against any Obama appointment. I think this is right on the merits, but it’s also essential on the politics. I’m reminded of this paragraph from a recent piece by Steve Hayes in The Weekly Standard:

The roots of our current discontent lie here. And conservatives are right to be angry. But the establishment does not shoulder the blame alone. As one conservative strategist told us: “Leadership is to blame for never identifying any hill worth dying on,” but critics of the establishment “are to blame for only being interested in dying.”

Well, this isn’t a hill. It’s a mountain. The Republican-controlled Senate should not confirm any nominee for the court this president nominates. The balance of the Supreme Court should become an issue in this presidential election. Let the people price it in to the presidential choice before them. I can come up with a dozen reasons for why I believe this, but suffice it to say almost every Republican and pretty much every conservative will agree. The future of the Republican party hinges on how Mitch McConnell handles the events before him. He’s off to a good start on this score.

2. Don’t tell me having a majority in the Senate doesn’t matter even if some of the Republicans are squishy moderate RINOs. Controlling the agenda matters, a lot. 

3. The double-standard for Republicans is not shocking but it remains galling. As Jim Geraghty notes in today’s Jolt, Chuck Schumer took exactly the same position on any further Bush appointments in 2007. I don’t seem to recall the shock and outrage we’re seeing today. 

4. On that note, Ruth Marcus — an often independent-minded liberal — offers some classic concern trolling of the GOP today in her column. She writes:

Finally, a Senate work stoppage would, in fact, be bad for Republicans. In the nation’s capital these days, everything is political, every institution politicized. That may be inevitable and irreparable, yet tables here have a way of turning. One party’s obstructionism ends up hurting it down the road.

Marcus is surely right that tables can turn. What she leaves out is the simple, glaring, fact that the tables are turning on Democrats who’ve been playing outrageous games with the appointment process for a quarter century. When Robert Bork was defenestrated by Joe Biden, despite Biden’s having said he would have no choice but to vote for someone so well-qualified, he was setting the table for payback. When Harry Reid pulled the trigger on the nuclear option (on lower court appointments) he was warned that this would come back to haunt him. When Democrats disgustingly blocked Miguel Estrada from the bench solely because he was a Hispanic, they set the table to be turned. When Barack Obama voted to filibuster Alito, he set the table to be turned. 

Cry me no tears now that Republicans are finally putting their shoulders to the table.

5. That said, the GOP may have committed a tactical error in stating right out of the block that Obama shouldn’t even nominate someone. In a sense it was a gaffe in that it was potentially harmful honesty. Democrats are much better at pretending to respect the process while doing everything to undermine it. The president has a right to nominate someone and the Senate has a right to withhold consent. Period. If its better P.R. for the GOP to pay lip service to the ritual, so be it. On the other hand, given where the Republican party is right now and the state of the presidential race, such lip service could be spun as a fatal sign of weakness, at least from a presidential candidate. 

6. It’s impossible not to think about this news outside the context of the presidential election. It reminds me, in a trite kind of way, of Harold MacMillan’s famous (and possibly apocryphal) reply about what he thought was the biggest threat to his plans, “Events my dear boy, events.” This news creates opportunities and pitfalls in the presidential election. For Cruz and, to a lesser extent Rubio, this is a chance to shine. No one in the field knows the issues around the court more than Cruz. Moreover, this situation lends itself almost perfectly to Cruz’s “brand” and theory of politics.

7. This is – and should be – a precarious moment for Donald Trump, who has given every indication that he is not only ignorant of constitutional issues but largely uninterested in them (save the natural-born citizen and eminent-domain clauses). For people who think this election is worth a gamble on an f-you to the establishment, this vacancy heightens the stakes. 

8. The division of blame for the ugliness of these fights is not equal. Yes, there’s hypocrisy on all sides of the aisle as the tables spin around and around. But philosophically this is a world liberals created. They have invested in the courts’ having power the Framers never intended. Their doctrine of the living Constitution has given, in theory, an open-ended warrant for courts to do whatever they want. People lament the rush of money into politics, but that money is made necessary by a government that has evermore control over the economy and peoples’ lives. Similarly, when we turned justices into monarchs, we increased the incentives for people to care much more than they should. If Scalia’s interpretation of the Constitution held sway in the land, the Court and the government would have much less power over our lives. And that, more than anything else, explains why the Left hated him so much. 


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