I want to begin what I say here by honoring the memory of Justice Antonin Scalia. He was a man who understood himself, who understood the Constitution, and who understood the enemies of constitutional liberty — whose name unfortunately is Legion. Here is Scalia on the reason for this.
“God assumed from the beginning that the wise of the world would view Christians as fools…and He has not been disappointed. Devout Christians are destined to be regarded as fools in modern society. We are fools for Christ’s sake. We must pray for courage to endure the scorn of the sophisticated world. If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.”
Scalia was not ashamed to be out of step with the times, so long as he was in step with the truth. Here he is again: “Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character.” Scalia was a bulwark of our republic, and a very great man. He is now at peace, and because of that we are deeper into war.
So we need to take stock of where we are. We need to take a look around, and make some important decisions. (This is particularly the case for the believers in South Carolina.) But before doing that, we need to settle a few things in our minds. There are three major issues.
The first thing we need to do is dispense with the idea that Obama should be able to fill that seat if he wants, and that the Republicans should defer to his nominee in a spirit of bipartisan spinelessness. President Obama is in fact a lame duck, and all the indicators of lameduckery have set in and are well advanced. We only have nine months until the election, and so the vacancy on the Supreme Court really ought to be one of the central issues in the coming campaign. The question before the country ought to be, “Who do you want to make the nomination to fill that seat?” It is a controversial issue — so let the American people decide it. This is not awkward timing — it is perfect timing.
In the meantime, the pretense from the left will be that to refuse to confirm Obama’s nominee will somehow be an affront to the Constitution. Sen. Elizabeth Warren was talking crazy like that yesterday. After all, it will be said, the Constitution expressly says that the president has the right to nominate a candidate for the Supreme Court. Right. And that same Constitution says that the Senate has the right to say, “Not so fast. Try again.” In addition, the Senate also has the right to say, “Pound sand.” The Senate has the right to not schedule a vote. The Senate has the right to put its hands in its pockets and look the other way, whistling. Appointment to the Supremes is something that the president and the Senate need to do together. The president has no more right to tell the Senate that they must approve someone now than the Senate has the right to tell the president who to nominate.
And so the Senate should make it abundantly clear that no one will be confirmed until after the election, after the next president nominates someone. Then Obama can nominate Al Sharpton now, and do what he can to make it a campaign issue.
This leads to the second issue. As the Republicans continue through their primaries, this issue of court appointments has descended from the realm of the hypothetical and abstract to the realm of the hard and concrete. If the general election is going to be about which of the two final candidates will fill that seat, then the primaries will be about the same issue, only one step earlier.
And so here is the thing about Supreme Court nominees. Nominees from the Democrats are universally bad. Nominees from Republican presidents are bad half the time, and good half the time. Scalia was fantastic. Thomas is great, as is Alito, and they were all Republican appointees. But the Republicans have also sent quite a number of constitutional moonbeams up there.
A number of the current presidential aspirants will of course say that they would want to nominate someone “just like Scalia.” That will be the thing to say, especially with Scalia’s passing. The question therefore becomes, how likely is it that they actually would?
Here is how I understand the odds. Trump would nominate someone with the constitutional acumen of a pot of boiled asparagus. We should have the same expectations for him as we would with a Democratic president. He has already said that his sister Maryanne Trump Barry — who is a extremist pro-abortion judge — would make a great appointment. She is an ardent defender of partial birth abortion, and that tells you everything we need to know. It is not that Trump would nominate his sister, but it does tell you he would nominate someone like his sister.
Bush and Rubio would be likely to continue the grand Republican tradition of nominating some outstanding jurists, along with some nickel-plated stinkers. Let’s spot them at 50/50, and grant that on average it would be a lot better than what Hillary would do. But let us also acknowledge that we can’t afford any more of that.
There is absolutely no reason to assume that they would nominate anyone more conservative than themselves — and both of them have already pronounced themselves good with women in combat. When that case gets to the Supreme Court, as it most certainly will, what sane father of daughters would want the case decided by some legal squish from the leftward side of Rubio’s constituency? We might get a good nominee . . . hope springs eternal . . . baby needs a new pair of shoes!
There is only one Republican running — who has a realistic shot at this — who would almost certainly nominate a constitutionalist. That person is Ted Cruz. We need a president who will nominate someone who wouldn’t recognize a penumbra if it bit him on the hinder parts. But there is one more thing.
And so we come to our last point. Any nominee from a Republican president who is anything like Robert Bork . . . will be borked. That means it is necessary to have a president who will brawl over this. Look at the line-up of remaining Republican contenders and ask yourself two questions — which of these men will nominate no one but crawl-over-broken-glass originalists? And which of them will play smashmouth in defense of that nominee? There is only one answer, and it rhymes with bruise.
Not to be an alarmist, but is in the highest degree likely that there will be some metaphorical dead bodies over this before all is said and done. What we are talking about is a profound power struggle at the top of an empire, and those who have a naive faith that the progressives will somehow play fair because of “American ideals” or something need to go down to the nearest library and check out a history book. I am no expert in skullduggery, but I do know what I am doing when it comes to dougskullery. And I do see what is coming. I can see where we are.
I choose my words carefully, knowing that there are those on the left who will pronounce themselves outraged that I would dare to insinuate that they would descend to murder in defense of their agenda. “Have you no decency, sir?” But I said metaphorical, and we are well past the point where we need to pretend with regard to their open agenda. Their death-wish program is murder — 50 million non-metaphorical bodies and counting. And when cameras are smuggled in, and their vile deeds are fully documented, they indict the valiant people who exposed them? When that is what they are defending, do you think they will play fair with Supreme Court appointments in the pursuit of their goal?
So if the Republicans nominate anyone other than Cruz, it will be variations on the old “bringing a knife to a gunfight” jibe. And with the remaining candidates, the variations will range from bringing a knife to bringing a wadded up tissue.