The Scalia approach is not new. It's been the approach of many judges, including some liberal ones. (In fact, there was a time when liberal justices used what I'm referring to as the Scalia approach to try to stop conservative judicial activism on the Supreme Court.) Scalia believed that judges should stick to the actual words used in the Constitution or statutes and try to ascertain the meaning of the drafters when faced with ambiguity. When this doesn't answer the question posed to the court, Scalia's philosophy mandates that the issue be deferred to democratically-elected legislative bodies.
My liberal friends reject the Scalia approach. They argue that judges shouldn't be confined to the actual words of the constitution or statutes or care about what the drafters intended when putting those words to paper. After all, when it comes to the Constitution, how do we know what the Founders were thinking when they drafted the Constitution more than 200 years ago? They argue that the Constitution is a "living document" and should be reinterpreted to reflect changing society.
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| The Late Justice Antonin Scalia |
When I ask my liberal friends what approach they would utilize to restrain judges from imposing their views on society, they have no answer. Their view of jurisprudence is that legislators are stupid and that it's perfectly okay for really smart, liberal judges to impose their views on society through the guise of interpretation. So if judges want a constitutional right to abortion on demand or same sex marriage, the fact that the text of the Constitution and its history clearly mandates neither is no bar to my liberal friends. Judges can just "find" such rights in the language. Clever fellows those liberals judges are - always able to "find" things that others of us can't see. Of course, when judges choose to take a conservative political position such as striking down a law limiting campaign contributions, liberals suddenly become champion of judicial restraint and legislative deference. Liberals are flexible that way.
On those aforementioned issues, abortion and same sex marriage, Scalia's approach would be to follow the Constitution by deferring the issue state legislative bodies. If state legislatures want same sex marriage and abortion on demand, they are perfectly free to impose those policies within their jurisdiction. Many of course would and some wouldn't. That's the way our system of government works.
The best issue for illustrating the problem with the judicial activist approach is the death penalty. The Constitution and the amendments contain three references to capitol punishment. It is absolutely clear from the language and the history that the Founders never intended to do away with the death penalty. Yet some of my liberal friends who support judicial activism believe that unelected judges should declare that the death penalty is unconstitutional for being "cruel and unusual," a punishment prohibited by the 8th Amendment. Why? Because society has "evolved" on the death penalty.
If society has "evolved" who better to recognize that evolution than democratically-elected legislators? After all, states are not mandated to have the death penalty. Many have done away with it in their jurisdictions. They have every right to do that. It is nonsensical that my liberal friends think that unelected federal judges serving life terms, as elite group of people as they come, are better gauges of the public's sentiment than representatives of the people who regularly have to win re-election.
As thoughts turn from Scalia's passing to his replacement, the Democrats are screaming that the Republican-controlled Senate has indicated it will block the President's appointment to the Court. It's a laughable complaint. If the situation were reversed and a Republican President nominated a replacement for a very liberal justice in an election year, an appointment that would tip the balance of numerous issues decided by 5-4 votes, does anyone seriously think that a Democratic-controlled Senate would confirm his selection? Of course not.
The fact is the Democrats have greatly politicized the United States Supreme Court, turning it into a super legislature in which their justice adopts their preferred liberal policies through the guise of interpreting the law. So to expect Republicans to look the other way about the political views of an Obama appointee, when that person can be expected to impose his or her political views through the guise of interpretation is, well, absurd.
Let's not forget that while Democrats complain that the Republicans have politicized the confirmation of a Scalia replacement, it was Democrats who were the ones that started that too. Prior to 1987, most nominations to the Supreme Court focused on qualifications of the appointee. Then in 1987, the Democrats launched a no holds barred attack on the eminently-qualified U.S. Court of Appeals Judge Robert Bork. The Democrats' reprehensible approach to the Bork nomination was escalated to a very personal level in the attempted "high-tech lynching" of Clarence Thomas. Opponents through Thomas' trash looking for dirt and also liberal groups ran ads asking that people come forward to dish dirt on Thomas. While the Democrats could have made a strong case that Thomas lacked the qualifications for the Court, they instead went after him personally. Reprehensible.
All this is irrelevant though as Obama's appointment to the Supreme Court will be DOA. (Resist inserting Scalia joke here.) But the one thing his death will do is galvanize both sides which now have irrefutable evidence that this presidential election, more than any in recent times, is critical to the future of the Supreme Court.
25 comments:
To quote Sheila Kennedy, "Republicans’ behavior is a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term."
She continues:
"There is simply no precedent for the Senate refusing to discharge its constitutional duty to advise and consent."
That you consider it better to have 8 justices serve for (almost) a year is laughable.
Anon 5:44,
There is an 80 year precedent of justices who are appointed by the President during an election year not being confirmed.
What makes you think the Senate isn't discharging its constitutional power to advise and consent to the appointment? The President has the constitutional power to appoint someone and the Senate has the right to say "no" which the Senate is doing. How is one different from the other?
I have absolutely no problem with the court operating w/8 justices. That's better than confirming a liberal justice who is simply going to write into the highest law of the land his or her liberal political views through the guise of interpretation.
Liberals have no standing to complain about the politicization of the Supreme Court and the confirmation process when they are the ones who began that politicization.
Do you really think if the situation were reversed and there was a Republican President wanting to replace a liberal justice on a 5-4 court that a Democratically-controlled Senate would confirm the appointment during an Election Year? If you say "yes," I have some swamp land I'd like to sell you.
Subject: Calling to mind Robert Bork and noticing in the news....
The parade of liars who are still with us and still braying their lies and distortions. There is some lightweight law professor, Kennedy by surname who lurks on a blog. Well, the rule in America is that no Kennedy can be trusted and she isn't the exception to the rule. Why would I have any reason to read her musings? Well, if you remember The Men in Black, K is looking for something, a clue, and so he purchases a number of tabloids like National Enquirer and finds the story about the Alien who took the skin of her husband. His comment was that the real news was to be found where investigative journalism took place. So, you are called upon to read the loons because our media has long been controlled as a means of social control. But, that is just my opinion and you can have your own. Still, you will see how you are controlled by media lying now that you are on the lookout for it.
One of these three would be an example?
http://www.nationalreview.com/bench-memos/431396/reid-filibuster Bork, a good name to remember for all of the lying being repeated by the usual liars.
http://www.wsj.com/articles/antonin-scalia-was-democracys-legal-champion-1455482790 A better view than that of a crabby lady.
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2720&context=ilj A lightweight law prof can choke on the first paragraph and never get past it. Reasonable folks might want to connect the dots and plow past the chicken bone stuck in her throat.
Anon 5:44, I disagree. Refusing to consider a judicial nominee IS a way for Congress to exercise its constitutional power. Much like the President has a "pocket veto" at the end of a legislative term, the Congress has the right to control its calendar. Too often Congress bends to the President's will, as the Iraq War, Medicare Part D, & TARP illustrated during the George W. Bush years. IMHO, it is about time that the legislative branch display some sort of backbone.
As we have learned and relearned in Indiana, elephants without spines are just large bags of excrement.
http://www.breitbart.com/big-government/2016/02/16/schumer-says-his-2007-speech-promising-to-block-conservatives-from-scotus-should-not-be-used-to-justify-blocking-obama-nominee/
Nothing this POS has to say was ever useful. So, as the lawyers say, "Are you lying now or were you lying then?"
Same question for Indiana liberals.....
Constitutionally, the President's obligation is to nominate & the Senate's responsible to review & either appoint or reject those nominations. Kennedy's wrong about the remaining current session; which ends in April & opinions are generally issued / published in late June; for this year.
Someone should clue Kennedy- Scalia's death is neither a repudiation of the separation of powers or an abrogation of the President's term...
http://www.westernfreepress.com/2016/02/16/thomas-sowell-its-time-to-unite-behind-cruz/
Some help from a respected source.
U.S. Supreme Court decisions is not part of the Supreme Law of the Land. It is not included into the text of the Supremacy Clause. So, if U.S. Supreme Court does change the U.S. Constitution by interpretation, it does it through usurpation of power that does not belong to it. Hence, in my personal view, the importance of selecting a U.S. Supreme Court justice is overrated.
"There is an 80 year precedent of justices who are appointed by the President during an election year not being confirmed."
Except there is no such precedent. Kennedy immediately comes to mind.
http://www.usatoday.com/story/opinion/2016/02/17/randy-barnett-antonin-scalia-new-originalism-heller-second-amendment-column/80450446/ Better views from this law school professor than those of S.L. Kennedy whose shoes must come in FFF width to accommodate her webbed feet as she quacks along misrepresenting her betters.
Rhonda,
Wrong. Kennedy was appointed in 1987 which was not an election year. He was confirmed in 1988, but that was not the year he was appointed. Further, Kennedy was the third person appointed to fill the opening. The Democrats had already turned down the eminently qualified Robert Bork as well as Douglas Ginsburg.
Rhonda, the article you cite simply proves my point. None of the justices who were appointed and confirmed during the past 76 years, were appointed during an election year. The last example where that happened was in 1940, so it's 76 years, not 80. The Kennedy appointment came in the year before an election. The confirmation came in an election year, but the appointment was the year before.
Further, how the Court operates today - handing down policy choices via the guise of interpretation - is far different than it operated in the distant past. Democrats are chiefly responsible for that. Further the Democrats are responsible for politicizing he confirmation process starting with their atrocious conduct during the Robert Bork and Clarence Thomas hearings.
Please don't try to tell me if the situation were reversed the Democrats would confirm a Republican appointee to replace a very liberal justice that was tipping the balance of the court 5-4. You know the Democrats would be doing the exact same thing.
No honor exists in the Democrat Party so long as their pride is in Borking or in Hi Tech Lynching and no Democrat who is in support of such should have any dealings with honest people.
http://nypost.com/2016/02/14/the-true-meaning-of-justice-scalia/ Channelling Bork? A lot of pre 1986 lawyers are long obsolete....some of them post here....
What would Scalia do? The Supreme Court is designed to have 9 justices. Without 9, there is a serious risk of a stalemate, and the appeal is for naught, especially in these partisan times. That subverts the entire legal appellate process.
If a Justice dies or otherwise leaves, the President is supposed to nominate a successor and the Senate is supposed to advise and consent, not try to intentionally delay the process to prevent the President from carrying out his duties. Arguments about citizens not having a "voice" are nonsense--they elected Barak Obama as President, twice, and that is their "voice".
Virtually all codes of conduct for judges state that they are to be impartial, and to decide each case on its individual merits. So, if a nominee is qualified, in the interests of the republic, the Senate should vote to confirm without requiring a bent toward any agenda and without unnecessary delay.
What would Scalia do? He would expect the President and Congress to do the jobs required by the Constitution.
Scalia finally did something good for the country. Good riddance.
http://www.nationalreview.com/bench-memos/431569/harry-reid-senate-consent Of course, the slime, Harry Reid, is but one face of the Democrat Ass but Indiana Democrats kiss it with some regularity and have for years done so. It is not surprising to find him now singing a different song. Much like Mr. Schumer, another piece of Soprano singing his new version of constructed (for the moment) lies. Scalia was a proponent of the idea that words have meaning. Democrat, for instance, in these two cases above means Hypocrite and all Indiana Democrats who hew with these two slobs partake of what we call Hypocrisy. People don't have much use for hypocrites, even in Indiana.
http://www.nationalreview.com/article/431564/supreme-court-republicans-senate-obama-nomination Might as well read a neocon writing in a neocon rag. Will all of your liberal friends care to refute his views, or as they used to say in law school, DISTINGUISH. It is no distortion to note that, on this matter, liberals are hypocrites, including those whose pie holes are closed, perhaps with embarrassment?
http://www.wsj.com/articles/bork-to-the-future-1455644290 Another neo con operation's views. Still, a useful history for those who are unfamiliar with the history.
Hypocri-sea is the modern liberal / fauxgressive's favorited destination...
Paul,
The fact remains that Reagan nominated (not 'appointed' as you say above) Bork and Ginsberg during his lame-duck year. The Senate took up the nomination and rejected it.
What Senate Republicans are saying now is that they won't even debate the merits of whoever is nominated by the President.
Rhonda, so now you're changing from "election year" to "lame duck year". Actually that's "years" as the president's four years of his second term are all lame duck years because he can't run again.
The fact is none of the three - Bork, Ginsburg and Kennedy - were nominated during a presidential election year. Obama wants to nominate someone during a presidential election year. An election year appointment to the Supreme Court has not been confirmed in 76 years.
And Reagan? What did he think of final-year court confirmations?
"I urge the Senate to move quickly and decisively in confirming Judge Anthony Kennedy to the highest Court in the land and to also confirm 27 nominees now waiting to fill vacancies in the Federal judiciary." Ronald Reagan, 1988 State of the Union
http://www.c-span.org/video/?c4581760/reagan-1988-sotu-urge-senate-move-quickly-decisively-confirming-judge-anthony-kennedy-highest-court&beta=
Nicolas,
Kennedy wasn't appointed by Reagan in his final year in office. He was appointed in 1987, the year before and that was after the Democrats had already rejected Bork and Ginsburg. The opening had been there for a long time before Reagan's final year in office.
The fact is no SCT nominee appointed in the final year of a President's term been confirmed by the Senate in 76 years. The Kennedy example is not an exception.
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