Boots & Sabers

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0631, 16 Feb 16

Justice Scalia slips the surly bonds of Earth

My column for the West Bend Daily News is online. Here it is:

Justice Antonin Scalia, the intellectual mainspring of the conservative wing of the Supreme Court appointed by President Ronald Reagan, is no more. Known for his brilliant opinions and clarity of expression, Scalia occupies a rare space in American legal history with the likes of Oliver Wendell Holmes, Louis Brandeis, Hugo Black and John Marshall.

With Scalia’s passing, the balance of the Supreme Court has been thrown into the political sphere. While it may feel unseemly to discuss the jurist’s replacement before his family has had time to grieve, it is necessary for our Republic to begin the discussion. The result of that decision will likely shape the high court for decades to come.

Before contemplating the ramifications and political consequences triggered by Scalia’s untimely death, we must lament the fact that those ramifications and political consequences are so gigantic. It was never meant to be. Our nation’s founders did not intend for the federal government to be such a large institution that has so much impact on our daily lives. Nor did they intend for the Supreme Court to be the final arbiter of all American legal and cultural matters. The Supreme Court was intended to be one of three balanced, equal branches of government charged with upholding the very limited scope of the federal government the Constitution created.

Yet that is no longer the case and we must deal with the reality in which we live. The Supreme Court has become a powerful institution whose decisions reach into every part of our lives, from deciding who may marry whom, what guns we may keep and bear, when it is acceptable to kill an unborn child, what health care we may use and much more. The reality is that we have granted nine lawyers in Washington, D.C., almost unlimited power to issue decrees big and small to an allegedly free people.

Most recently, the power of the court has been roughly divided between four judicially conservative justices who seek to interpret the Constitution according to its original meaning, and four judicially liberal justices who view the Constitution as a living document that allows for judicial interpretation leading to desirable outcomes. Then there is one justice who sits in the middle, but usually leans toward the conservative wing of the court. Of course, the balance of the court is not fixed and has often swung far to the left — as it did in the first ruling about Obamacare.

Scalia was the bedrock of the conservative wing of the Supreme Court. His passing means that a liberal President Barack Obama has the opportunity to appoint a liberal replacement and tip the balance of the court decidedly more liberal. Unfortunate as it is, the person who replaces Scalia will likely be more important and have more long-lasting impact on American society than the person who replaces Obama.

Fortunately, we are already deep into an election year to elect Obama’s replacement. There is no constitutional requirement that Scalia’s replacement be selected immediately, nor is it uncommon for the court to conduct business with a justice or two absent. The business of the court can continue apace until an appropriate replacement is found.

With that being the case, the next Supreme Court Justice should be chosen by the next president. By preserving the appointment for the next president, the American people will have an active and immediate voice in selecting not only the next president, but also the balance of the Supreme Court. Given the importance of the issues that are adjudicated by the court, the serendipitous opportunity for the American people to choose both their next president and the makeup of the Supreme Court is not one to be ignored. Every senator — both Republican and Democrat — should assure the American people they will not confirm an appointment until the people have had the opportunity to let their will be known through the vote.

As a final note, Scalia had a fulfilling and consequential legal career. He was married to Maureen for 55 years, and had nine kids and 28 grandchildren. He died in his sleep after a day of quail hunting with an unshakable faith that Jesus had assured his eternity. We should all hope to be so fortunate.


0631, 16 February 2016


  1. Northern Pike

    Alright, let’s assume we leave this seat vacant for an unprecedented time period so that the people have “the opportunity to let their will be known through the vote.”

    And let’s assume that Democrats nominate Hillary Clinton, the Republicans nominate either Donald Trump or Ted Cruz.

    And let’s further assume that Hillary wins the presidency by seven percentage points and the Democrats gain six seats in the Senate.

    Do the Democrats get to pick a replacement? Or do the Republicans, despite the people having spoken, mount a filibuster?

  2. Owen

    Yes, if your scenario plays out, then the Dems get their pick. Of course the Republicans are obligated to have their say, but they can’t deny indefinitely. By the same token, we may get a Republican president and a Dem Senate. In that case, I’m sure the Dems will mount a vigorous opposition to the president’s nomination.

  3. old baldy

    Isn’t it also the constitutional responsibility of the president to nominate a SC candidate? Does it say anywhere in the constitution that a president in their last year in office cannot make a nomination? Isn’t this a problem for constitutional originalists? Or are McConnell, Cruz, etal politicians “who view the Constitution as a living document that allows for judicial interpretation leading to desirable outcomes?

  4. Northern Pike

    I omitted the Republican president/Democratic Senate scenario because I can’t conceive of a circumstance in which Democrats could pick up five seats while losing the presidency.

    It’s a lot easier to conceive of a scenario in which a Democrat gets elected president and Democrats coming up just short of retaking the Senate.

  5. Owen


    Yes, it is the president’s responsibility to nominate a nominee. Nobody is saying that it isn’t. It is also the responsibility of the Senate to agree or disagree with the nominee. There is no constitutional requirement for the Senate to approve of the president’s choice even if there is a passage of time. In fact, a Senate could choose not to confirm any presidential nominees indefinitely, but the political reality is that those Senators would likely eventually be voted out of office because of it.

  6. old baldy


    We agree. So why the big play by Cruz, McConnell, even Hatch ? Why not let Obama make an appointment and see where it goes from there? Or, as you say, are they afraid of the election fallout if they don’t act in some way? Real leadership on the part of McConnell. Not!

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