What Would Justice Scalia Want?

Antonin Scalia's Successor

2/17/2016 - Cal Thomas Townhall.com

Few people in modern history have fulfilled their oath to "preserve, protect and defend the Constitution" more than the late Justice Antonin Scalia.

Scalia was so well respected that the Senate voted 98-0 in 1986 to confirm him. These days it would be difficult to get a unanimous vote in support of Mother's Day.

It doesn't take a fortune teller to predict the scenario that would present itself if the political dynamics were reversed and a Republican president were in the White House with a Democratic Senate majority. Democrats would be demanding no justice be confirmed until the next president takes office and they would make it a major campaign issue. That is what Sen. Charles Schumer (D-NY) said in 2007: "We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances." That was 19 months before the 2008 election. It is a little more than eight months away from the next election.

The president is not about to nominate a conservative and should not be expected to. Will he pick someone who is a closet liberal, daring the Senate to reject that person, or will he choose an openly liberal person and challenge the Senate to block his nominee?

If ever there was a time for Senate Republicans to stand firm, this is it. Initial signs are good. Senate Majority Leader Mitch McConnell (R-KY) issued a statement that the next justice should not be confirmed until after a new president takes office. Senate Judiciary Committee ChairmanCharles Grassley (R-IA) said much the same.

Some are speculating that President Obama, who quickly announced he will name a successor to Scalia "in due time," might try to make a recess appointment after the current Senate session expires January 3, 2017, should the Senate refuse to confirm his nominee. How long would such a justice serve, and who would decide? When President Eisenhower appointed William Brennan to the court during a congressional recess, Brennan stayed for nearly 34 years.

For the Left, this is an opportunity to impose a liberal agenda on the nation for perhaps as many as 40 years. For the Right, it will determine whether conservatives will have the power to stop an agenda they believe is proving ruinous to the country -- economically, legally and morally. The stakes could not be higher.

Justice Scalia summarized his constitutional philosophy in a May 2011 interview with California Lawyer magazine:

"Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society."

It will be difficult for a Republican president to find someone as good as Scalia. If President Obama puts another liberal on the court, tipping its balance, that person is likely to undo all that Scalia has done to honor the Constitution.

The Senate should push the hold button and let the presidential candidates take it to the people to decide in November. Justice Scalia would have approved of such an approach.