COURTING DISASTER

The death of Justice Antonin Scalia had not been announced for more than three hours or his succession at the Supreme Court turned immediately into a political brawl. It made me observe that, If politicians have no respect for the solemnity of the moment when we should pay tribute to and celebrate the life of a great societal leader, how can we ever expect them to respect their lesser constituents who vote them in and out of office?

Could the people who represent us in elected office, and those who want to be elected, not wait until Justice Scalia had been laid to rest before politicizing his passing in a most distasteful display of partisan posturing?

No doubt, we will hear some of these loudmouths eulogizing Antonin Scalia in the most pious and reverent terms when the funeral service will be held this Saturday at the Basilica of the National Shrine of the Immaculate Conception in Washington, D.C. How hypocritical will they sound when from one side of their mouth they will put this defender of the constitution on a pedestal, while from the other side of their mouth they proclaim, in defiance of the constitutional mandate thrust upon them, that they have no intent to offer the President Obama their advice and consent when the President fulfills his constitutional duty to name a replacement for the departed Justice. What a display of irreverence for the giant champion of the originalist, text based, interpretation of the US Constitution!

Even Paul Ryan, although the House of Representatives has no role to play in the confirmation of appointees to the Supreme Court, could not keep his powder dry and publicly endorsed the refusal by the majority leader in the Senate to deal with the nomination of Scalia’s successor if brought up in this last year of Obama’s presidency.

I am sympathetic to so many tenets of the Republican ideology, like a limited, efficient and disciplined federal government that cedes to the States in most areas of public governance, but I feel zero affinity with the political zealots that are now the most vocal prophets of the right wing demagoguery of what once was the Grand Old Party.

For the Republicans in Congress to respond to Scalia’s death the way they have over the last few days, they must have supreme confidence in two things: that they will regain the White House in the November election and that they will continue control of the Senate. Why else are they, at what could very well amount to a high political cost, so adamant that they will not consider an Obama nomination, even if the president comes forward with an eminently qualified nominee? By their myopic, populist zeal, they are almost daring to be denied by the voters in November. And then what?

It would be a good time for the members of Congress to be somewhat more introspective of their own shortcomings. If Congress is doing the People’s work, the work they were elected to do, they would have little reason to fear a more activist Supreme Court. One of the main reasons why Antonin Scalia resisted in so many cases to join a majority ruling by the Supreme Court is exactly that he did not want the court to provide cover for legislators who were not doing their job. Scalia was fiercely protective of the separation of powers: let the legislative branch do what is constitutionally theirs to do, i.e. write the law, and let the Supreme Court assure that the law gets correctly and uniformly applied. If Congress does its job and legislates the main political issues of our time, there is much less room and reason for the Supreme Court to step into a law making role.

If the Republicans in the Senate stick to their guns, we can be looking forward to a very long period of having an 8 person Supreme Court (that is if no other vacancies pop up in the meantime). Because, if no action is taken on filling the vacancy on the court during Obama’s tenure, it could easily take a year or more to confirm a nominee coming from the next president, particularly if the next president is again a Democrat and the Republicans retain control of the Senate. Is that good for the nation? It would likely mean that some of the stalemate that has stymied Congress will now be expanded to the Supreme Court.

Of the remaining eight Justices, Justice Bader Ginsberg is in her early eighties and Justices Kennedy and Breyer are in their late seventies. How long can we expect them to continue to serve and, if they, or any of them, resign or die will the Congress just stand idly by? What a dereliction of duty would that be! We can only hope that the voters would punish the culprits by throwing them out of office.

Constitutional scholars have already determined that in the history of the United States, on 13 occasions a vacancy on the Supreme Court has occurred – through death, retirement or resignation – during a presidential election year. So, there is enough precedent for taking up the replacement of Justice Scalia before a new President and Congress is chosen.

Republicans are courting disaster, for themselves, their party, but also for the orderly governance of the nation if they don’t come to their senses and do their constitutional duty to offer the president advice and consent when he, as he already said he will, nominates one of nation’s legal scholars to fill the ninth seat on the Supreme Court.