This weekend the nation is mourning Supreme Court Justice Antonin Scalia who died on Saturday at the age of 79. Scalia was one of the most influential legal thinkers and brilliant writers and personalities ever to serve on the Supreme Court. More than any other jurist, he was the one that did more to promote the idea of originalism — the notion that judges should interpret the Constitution as the Founders intended — and textualism – the idea that the words of the Constitution mean what they say. He was the intellectual leader and the backbone of the conservative majority that has prevailed in many cases in the last decades as well as the author of scathing and insightful dissents that may be remembered as long as his majority opinions. At the same time, he will also be justly celebrated as a man who was able to friends with liberal colleagues even as he engaged in spirited arguments with them. That is an example that more Americans should follow in a time of increased polarization.
But even as we honor Justice Scalia’s memory, his passing puts the 2016 presidential race in perspective. While there’s no doubt that President Obama will nominate a successor, the Republican-controlled Senate will never confirm anyone put forward now. Scalia’s replacement will determine the ideological balance on the Supreme Court making the stakes in this battle as high as those in the presidential election. The person that takes his place will likely be in a position of power long after even the next president leaves office.
There is no modern precedent for a struggle over a nomination that resulted in a vacancy lasting as long as a year. But we all know that had one of the court’s liberals died in 2008, the Democratic majority in the Senate would never have confirmed anyone nominated by George W. Bush. That is the consequence of divided government in a presidential election year. The Democrats will try to paint the GOP Senators as obstructionists, but Republicans will be unmoved and even the most fair-minded independents and Democrats will understand that were the positions reversed, the Democrats would have done the same thing.
Nor, thanks to recent SCOTUS rulings about presidents making recess appointments, will President Obama be able to sneak a liberal onto the court via that procedural trick as he attempted to do with the National Labor Relations Board. That means that one way or the other the Senate will now remain in session until the next president takes the oath of office in January 2017.
But what this also means is that Supreme Court appointments will now take center stage in the presidential contest. Of course, every four years the two parties always try to mobilize their bases by warning that letting the other side prevail will alter the balance of the court. It’s an important argument, but one that rarely riles up many voters. But they ought to listen this time.
There’s no doubt that all of the Republican presidential candidates still in the race will promise to nominate justices like Scalia if they are elected. And perhaps they all might. But conservatives know all too well how hard it is for GOP presidents to find and nominate conservatives that won’t “evolve” and wind up voting with the liberals. Scalia’s death means that those who vote in Republican primaries this year should prioritize the question of the court and take two key points into consideration when making their choice.
The first is whether they are actually voting for a conservative.
We all know that in this election cycle anger about both parties’ political establishments has produced a populist wave that seems to have overridden every other consideration. But as difficult as it has proved to be for a conservative president to find a reliable conservative jurist, the notion that Republican voters can trust someone who isn’t a conservative to nominate someone that will take up the banner from the fallen Scalia is absurd. A lot of them clearly think Donald Trump is just the man to overturn the Washington apple cart to their satisfaction. His simplistic pronouncements, outrageous conduct, and vulgarity are excused as expressions of politically incorrect impudence in the face of the establishment. But replacing a Supreme Court justice requires a degree of sober reflection and ideological steadfastness that no one has ever accused Trump of possessing. The fact that he said this week in an interview on Fox News that “I’m capable to changing to anything I want to,” is a warning that anyone relying on him sticking to conservative principles that he has never previously supported is not being serious.
The other question is electability. Of course, all the candidates will claim they can win and in the unlikely event that the Democrats nominate Bernie Sanders, they might all be proven right. But this is not a purely theoretical query. A lot of those on the right have taken the position in recent decades that they see no real difference between the party establishments. There is some truth to this accusation when it comes to business as usual on Capitol Hill. But Scalia’s death gives the lie to the widely-accepted line on the right that electing a GOP Congress was meaningless because it was unable to overturn Obama’s liberal agenda on issues like ObamaCare, illegal immigration, or even the funding of Planned Parenthood.
If conservatives hadn’t turned out around the country in 2014 to elect conservative Senate candidates to win control of the upper body, right now Democrats would be licking their lips anticipating the swift approval of any liberal that Obama would nominate. Moreover, they should also remember that the GOP victory was only made possible because in 2014 the party establishment went to great efforts to vet the party’s Senate nominees in order to avoid primary victories by right-wing outliers like Christine O’Donnell and Sharon Akin that cost the Republicans a chance to win the Senate in 2010.
Conservative may not love some establishment choices (or conservatives whose stands on issues like immigration causes some to falsely brand them as RINOs). But insisting on total ideological purity will not create majorities in the Senate or the Electoral College.
All conservatives will join in remembering Scalia this week. But unless they are doing what they can to nominate and then elect a Republican that can be relied upon to choose a genuine conservative jurist to replace him, their praise for the late justice will be meaningless.