Rest in peace Mr. Justice. Your legacy as one of the truly great Supreme Court Justices is secure. More than any Justice within recent memory, you have embodied the legal spirit that we believe the drafters of the Constitution had in mind. You have interpreted the Constitution without endeavoring to expand or modify it. Your opinions have been insightful, imminently readable, fair, and consistent–whether as part of a majority or in dissent. And you have carried out your sworn duties with verve, wit, and humor.
We suggest to our readers that they take the time to read some of your recent opinions if they want to understand how a Justice of the Supreme Court of the United States should comport himself or herself.
It is however a sad commentary on the state of political life in America today that, before you even had an opportunity to lay in state, the matter of your successor became a political football. President Obama was quick to assert that he intended to carry out his sworn Constitutional duty to nominate your successor. As an aside, it is interesting to observe how this President adheres to the Constitution when it suits his political narrative and blatantly disregards that document when it does not.
And so the President has set the table for the Republican majority in the Senate to, at last, demonstrate to their constituents why it was important to elect that majority. In spite of holding majorities in both the Senate and the House, Republicans have done little to justify the honor that the voting public has bestowed upon them–unless, of course, one believes that acquiescence to Presidential whims, or standing by while the President tramples upon the Constitution, are virtues. But perhaps this is the moment we have all been waiting for–that significant opportunity for the Senate majority to demonstrate that they are not simply Democrats light, that they are more than just appeasers, that they have at long last developed a backbone.
Let us begin by noting that allowing President Obama to have his third nominee appointed to the Supreme Court would be an unmitigated disaster. Who can seriously doubt that a President, who has politicized everything down to the White House china, would fail to politicize the appointment of a Supreme Court Justice who could, and likely would, implement his plan to radically transform America for decades to come?
And so we beseech you Senate majority–stand tall and firm with respect to this seminal event. The President has, once again, endeavored to convince the public that he occupies the moral high ground by promptly performing his Constitutional duty to nominate a new Supreme Court Justice–while, of course, implying that the failure of the Senate to immediately confirm his nominee would be an un-Constitutional response. The Senate majority must not let the President frame this debate. The Senate has “a Constitutional obligation” not to appoint a Presidential nominee who has even the remotest chance of sending the Court in a decades-long, leftward-leaning misdirection. And, by design, the Senate’s Constitutional obligation trumps the President’s obligation. So here is the challenge to the Senate majority–unless the President nominates Newt Gingrich, Rush Limbaugh, or Ted Cruz, there is no justifiable basis for the Senate to approve “any” Obama nominee. While we would take some satisfaction from having the Senate remind the President that “they won and he lost” or that “elections have consequences,” we will settle for the simple exercise of Constitutional defiance. We don’t really care whether the Senate exercises its Constitutional duty by means of a blanket statement that no Obama nominee will receive consent of the Senate, by advising the President that any nominee he puts forward will be unacceptable and that no hearing will be necessary, or by going through the exercise of holding a hearing before turning down the nominee (though, in fairness, any nominee who wants and receives a hearing should be advised in advance that the process will likely be a waste of his or her time, of the Senate’s time, and of taxpayer dollars).
The appointment of any Obama nominee will disrespect, and likely destroy, the decades of hard work judicial work by a singular Justice. And if the public good is insufficient incentive for the Senate majority to do the right thing, perhaps enlightened self-interest will do the trick. Cooperation with Obama on this important matter would be a deal-breaker for re-election of any Republican Senator.
To date, the center of the Republican majority seems to be holding firm–although the usual weak-kneed GOP Senators have attempted to straddle the fence by agreeing to meet with Obama’s nominee, Merrick Garland. We will see if the soft, squishy middle of the Republican Senate is willing to hold its ground. Kudos to Senate Majority Leader, Mitch McConnell, of whom we are frequent critics, for so far holding his ground regarding this critical Supreme Court decision.