In the aftermath of Antonin Scalia’s death we have the perfect lens through which to view our current political dysfunction.
Starting with the obvious: “Judicial activism” is a term describing court decisions with which one disagrees. “Originalism” is the opposite. But there’s no way objectively to discern “original intent.” If there were, there’d be no need for judicial review. Whether purposeful or by failing to foresee the devolution of information and thought and comity that has befallen America, the writers of our Constitution made it sometimes impenetrably vague, contradictory even, especially with regard to the first two amendments. It’s impossible, for example, to reconcile “well-regulated” with “not be infringed.”
To read into the Constitution the incalculably destructive inventions that “money is speech” and that “corporations are people,” claims that Scalia aggressively advocated, is to insert naked politics into judicial renderings. You may argue that it’s entirely within the purview of the Court. Fine. I’d call it activism. But what it’s NOT is strict Constitutional divination.
Conservatives loved Scalia, the ultimate political animal (Salon.com: tinyurl.com/scalias-brain), because their politics aligned with how he inserted his own into decisions. In his later years, particularly after Barack Obama became president, he stopped hiding it altogether. His religion-based words on gay marriage have nothing to do with civil law; they are the antipode of impartiality. And, oh, how he loved accepting those free trips! Considering Scalia a model of judicial restraint is as ridiculous as calling Fox “news” fair and balanced.
Most amusing, following his death, are the hypocritical hypocrites making “hypocryphal” claims of hypocrisy. Acting on Foxolimbeckian post-hypnotic suggestion, people point to a speech Chuck Schumer made a decade ago, in which he encouraged Democrats, after Roberts and Alito abandoned all pretense of impartiality, to think twice before affirming future nominations by George Bush. “Hypocrisy!” shout Republicans. “Democrats are attacking Mitch McConnell for saying the same thing,” they echo. Sorry, no. It’s apples and apricots.
When Schumer spoke, there were no court vacancies. He did not advocate blocking, in advance, any potential justice. He urged, depending on the theoretical nominee, voting no, which is exactly what “advice and consent” is about. He was not saying that no candidate, no matter who, should get even a committee hearing, let alone a vote; nor, as a “regular” senator, was he announcing policy. McConnell, the majority leader, did exactly that.
Republicans are claiming precedent for not approving justices in an election year. Surprise: Mitch McConnell said precisely the opposite about Anthony Kennedy during Ronald Reagan’s last year. Unlike Schumer, that’s the same guy, in exactly the same situation, saying exactly the opposite thing, then and now. Where are the originally intended Constitutional words saying a president’s job ends a year before his term does?
Shall we demand that Republicans up for election stop proposing or voting now on new legislation?
If there’s hypocrisy on both sides, there’s none as blatant as McConnell demanding “up or down” votes during the Bush years, flipped to his unending obstruction of Obama, purely for his own and his party’s re-electability, country be damned.
Let’s face facts: there’s no precedent for blanket refusal even to consider any nominee. (Nor, for that matter, far as I know, is there precedent for refusing to have a president’s economic team testify about a budget.) This is astounding, if unsurprising, disrespect and political cynicism, fitting the pattern begun on Obama’s first day, shining blindingly through the aforementioned lens. Yet they’ll deny that such behavior is the root of Donald Trump, or the soil in which he germinated.
Even if Republicans were to allow hearings, there’s no way confirmation will occur, despite seeing that the person President Obama sends up will be, like his previous nominations, highly respected and eminently qualified. My faith in conservative voters has been deeply shaken; but I trust that if Trump is nominated, the next president will be a Democrat, and justice will be served.
The good news for Republicans is that it won’t matter: Their potential leaders have already informed us that God’s law supersedes the Constitution, and that if the Court renders a decision they don’t like, it’s OK to ignore it. If you’re looking for abject hypocrisy, there it is.
Email Sid Schwab at columnsid@gmail.com.
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