15 February 2016
We are governed by the Constitution, not custom
In the ultimate proof that Republicans really don't care what anyone but their own kind thinks of them, the GOP apparently intends to make a stand against even holding hearings for anyone the President may nominate to fill Justice Scalia's seat on the Supreme Court. Their pathetic argument in defense of their position is that it is not customary for a President to nominate a Justice during an election year. What they seem to mean, as the record shows, is that it's uncommon for a President to nominate a Justice while the Senate is controlled by the opposing party. NBC News cites six instances of election-year nominations. In only one such case did the President and Senate majority belong to opposing parties, and in that 1956 case, although the Democratic-controlled Senate was in recess when President Eisenhower, a Republican, nominated William Brennan, the Democrats promptly confirmed Brennan, who ironically proved to be one of the Court's great liberals, when they returned to Washington in 1957. On four previous occasions, a President's nominee was confirmed by a Senate controlled by his own party. So the "custom" cited by Republicans now is pretty much a figment of their partisan imagination -- and if Justice Scalia actually had any integrity as an "originalist," I'd expect him to scoff from the grave at the GOP ploy, since this so-called custom is nowhere to be found in the Constitution of the United States. The President is under no constitutional obligation to defer to the Republican Senators' wishes or feelings on this matter. Unfortunately, the Senators probably have no enforceable obligation to bring an Obama nominee to a vote, or even hold hearings, before Election Day. No matter what they do, however, the succession to Scalia's seat is now, and will remain, a dominant election issue, and it can only hurt the GOP. The Republicans are taking a gamble, presumably, on the premise that anyone Obama might name could be dismissed as an unacceptable radical. That blows up in their face if Obama names anything close to a moderate, despite the litmus test already demanded by both Clinton and Sanders, who've said that anyone they'd nominate -- do you doubt that they're privately rooting against Obama on this one, no matter what they might say in public? -- must be committed, for starters, to overturning the Citizens United decision on campaign financing. This is almost a no-risk situation for Obama. It probably has never been easier to make the Republicans look like idiots to the entire country than it would be right now, and as a lame duck Obama himself has no consequences to worry about. It might be worth his while to screw over both Clinton and Sanders by nominating a moderate, without applying their litmus tests, since one of them is bound to benefit in November from the Republicans' mindless obstructionism. Since Justice Ginsburg will probably retire the moment the next Democratic President is inaugurated, it's not as if Obama's would-be successors won't get a chance to pick a Justice themselves. This is shaping up as such a perfect scenario for Obama and the Democrats that I'm surprised I haven't yet heard anyone say Scalia was murdered.
Subscribe to:
Post Comments (Atom)
5 comments:
If the supreme court can so easily overturn its own decisions, then what is the point of the supreme court? My understanding is that one of their duties is to decide the constitutionality of laws passed by the government. If they are so willing and able to flip-flop on an issue, depending on whether there is a majority of "conservative" or "liberal" justices, then they serve no real purpose and we should consider eliminating or replacing them with something that works.
Not that I wouldn't want to see that particular decision overturned, but in general, it seems to me that their decision should mean something more than temporary partisan victories.
Republicans blame Democrats for violating the original intent of the Framers, and Democrats blame Republicans for failing to respect what they call the living Constitution. Each is convinced that the other side's interpretation is utterly wrong and in need of correction, but both are guilty of reading things into the document that aren't there, most notably "natural rights" as imagined by Republicans. I assume that if Hamilton, Madison, et al, meant the Constitution to be interpreted in terms of natural rights, as Scalia believed, they'd have mentioned those in the Preamble. It may be that constitutional jurisprudence depends on a consensus on values that no longer exists in this country. The problem won't be solved by any new constitutional convention, however, so long as ideological bipolarchy persists.
It seems to me that, given the fact that it wasn't carved into stone, and that it is set up to be amended, pretty much says that the repugnicans are wrong. Not that they are capable of admitting to ever being wrong.
But if repugnicans are going to insist on "original intent", lets start by taking a real close look at the second amendment, in full, no just the part that says "the right to bear arms shall not be infringed..." And we can keep to the original intent by requiring everyone who owns a firearm to be part of a "well-regulated militia" and are ready to be called upon to ensure "the security of a free state". After all, the tree of liberty must be fed with the blood of patriots and who claims to be the most patriotic?
This is exactly where Scalia failed as an "originalist," or else exposed a fallacy of orignialism, because, as I already noted, in his gun-rights decisions Scalia read a "natural rights" ideology into the Second Amendment that made it self-evident to him, if not to generations of predecessors, that the Framers' language recognized an individual right to keep and bear arms. Originalists also take it for granted that the Declaration of Independence clarifies most ambiguities in the Constitution, and since Jefferson affirms natural rights in the Declaration, originalists assume that the Constitution recognizes natural rights even though Jefferson had nothing to do with writing it. If originalism means what it sounds like, I would note that the Declaration is nowhere in the Constitution acknowledged as an overriding authority or key for interpretation, while the much-adored Ninth Amendment is too vague to serve as an affirmation of any specific "natural right."
Post a Comment