Honor Justice Scalia by Keeping His Court Seat Empty — for Years, If Necessary

By John Zmirak Published on February 14, 2016

Saturday was a tough day for America. We lost the leading champion of our Constitution, Justice Antonin Scalia, a great-souled scholar who with learning, wit and principle defended the actual words, sentences and paragraphs of our precious founding document. Without men like him, it will surely become so much scrap paper for liberal elites to fill with their latest fetishes. His death affected me like the passing of Richard John Neuhaus and the resignation of Pope Benedict XVI: One by one, the lights are winking out, and the darkness grows ever deeper.

All the more reason to start a fire. For too long, Republican and Democratic senators have played by radically different rules when it came to approving Supreme Court (and other federal court) appointments by the other party’s presidents. Republicans have mostly toed the old civics-class line that every judge should be evaluated by his or her professional qualifications, and not subjected to “litmus tests” on particular issues, since the courts are not meant to be activist. (Jeb Bush is still repeating that talking point.) So in theory, a judge’s personal politics ought not to be at issue.

And liberals have nodded and smiled, as Republican senators were voting to confirm ideologues like Ruth Bader Ginsburg and Sonia Sotomayor. But when a Republican president appointed principled conservatives such as Robert Bork and Clarence Thomas, Democrats threw that fine pretense aside and acted as if the Court were a crucial power center in the struggle for America, because in fact it does legislate, and aggressively so, on issues of critical importance to life, liberty and happiness.

And the Democrats were right. Not on the kinds of judges they wanted, nor even on what the Court should do, but on what it does, and how we should respond. Ronald Reagan once quipped that in the arms race with the Soviet Union, “only one side is running.” And that is the problem with our courts, the reason that Democratic appointees are absolutely lockstep predictable in how they will vote on crucial social issues, while Republican picks are open questions.

Some of the Republican appointees, such as the late Justice Scalia, and Justices Samuel Alito and Clarence Thomas, hew closely to Constitutional principles. But George W. Bush appointee John Roberts and especially Reagan appointee Anthony Kennedy are unreliable, subject some observers say to the press of public opinion, and even political pressure. And don’t forget President George H. Bush’s now infamous David Souter appointment. Souter was a somewhat unknown quantity at the time and sailed through the confirmation process, but he became a reliably liberal vote during his tenure on the high court, and even waited out George W. Bush’s eight years in the White House in order to retire when Bush’s Democratic successor had moved into the Oval Office, thus allowing President Obama to appoint Souter’s successor, the liberal Sonya Sotomayor.

As Ted Cruz rightly observed in the first GOP debate, the reason for this pattern of Republican presidents appointing unreliable candidates for the high court is that those justices were chosen to sail through a Senate that might not confirm conservatives, by White Houses that weren’t willing to fight.

Can you imagine the outrage that would flame across America among the left if a Clinton or Obama appointee started voting with Justice Thomas? Democratic donors and activists would be on the warpath. There would be agonized “listening sessions” at Harvard and Oberlin College, and future judges would be vetted by retired East German Stasi agents. But when GOP appointees betray the voters who elected the presidents in question, and collude in the use of the Constitution to impose leftist agendas that Americans rejected at the voting booth — from legal abortion to same sex “marriage” and beyond — we mostly shrug. We are used to it. Our party’s elites are unreliable, and this is the price we pay.

This year’s primary season is showing those party elites the price of those and other betrayals. The voters don’t trust the leaders of the party or even the conservative movement, and are toying with the idea of giving the nomination to an untested, crass, unprincipled demagogue, by way of teaching the GOP a lesson. Such populism could be defined as “the dumb thing you do when elites have foreclosed all the smart options.”

But we do have smart options. There is more than one potential GOP nominee who has credibly pledged to appoint solid, pro-life conservatives to our courts. The question is whether they’d have the spine to do it, to face the firestorm of elite and media abuse that would accompany such an appointment, and be prepared to stand their ground. This is what a conservative president would need to do to overcome the fanatical opposition that a real conservative nominee would face in the Senate:

  1. Choose a solid, Constitutional conservative with a long track record.
  2. Make it clear that he will put all his political muscle behind winning his confirmation, and will punish any senator who opposes him.
  3. Broadcast the fact that if this nominee is rejected, the next one will be as conservative or more conservative, as will the next one after that — because that president would rather leave a vacant seat on the court for the rest of his term in office than be responsible for turning over our fragile, complex Constitutional order to political perversion.

There are two pro-life senators among the presidential candidates. Each of them could show his mettle by leading the fight right now to stop the Senate from even considering any appointee by Barack Obama to fill Justice Scalia’s seat on the court. Ideally, senators Rubio and Cruz should hold a joint press conference to this effect this very week, putting aside their differences to form a common front in defense of the Constitution, religious liberty and unborn life. They should gather as many of their colleagues as they can in such an effort, with a pledge to block by any and every legal means any Obama appointment.

But they should go further. As long as Republicans control the Senate, there is no excuse for any pro-choice, anti-gun rights, anti-marriage justices to be confirmed to our highest court. If, God forbid, Bernie Sanders or Hillary Clinton is elected, they should face a Republican Senate — or even a GOP minority — that will obstruct their every judicial appointment, even if it means leaving key seats on national benches empty, for years at a time. As justices retire or die, the court will simply grow smaller. Big deal. America will muddle through. This is the kind of implacable determination that defeated the solidly conservative Justice Bork and got us the muddled Anthony Kennedy — and Casey v. Planned Parenthood and Obergefell. It is time for that worm to turn.

Conservatives must drop the facade of high-minded bipartisanship, which only ever cuts to the left. The courts have staggering power to change our lives, and damage our country. They can kill our nation’s unborn babies, seize our guns and punish our churches. If GOP senators aren’t willing to fight long, hard and relentlessly to stop that from happening, we should find other senators who can, back them in the next primary election, and cripple the re-election of squishy moderate turncoats. A presidential candidate who appreciates all this will get my vote. And I think he’ll earn yours.

In the meantime, of Justice Scalia, I feel sure that he is enjoying his reward, and I hope that the Catholic Church recognizes him soon. As they said of John Paul II, santo subito! Antonin Scalia, pray for us.

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