Replacing Scalia

Sometimes in life timing is everything. Being out of the loop yesterday due to some family business, I didn’t learn about Justice Antonin Scalia’s death until I saw it on the evening network news. (My reaction: “You gotta be kidding me…we’re so screwed.”) It turns out, though, that something I wrote for the Patriot Post just two weeks ago becomes more prescient than ever. My “assuming all of them survive this year” just got tossed out the window.

Obviously Democrats feel that the timing means Barack Obama can select that cherished fifth liberal vote he needs to seal the deal and consign America to the ash heap of unlimited government power. In an e-mail with the subject “Our message to Mitch McConnell” they warn:

Our president, Barack Obama, has been very clear: He’s going to fulfill his constitutional obligation and nominate our next Supreme Court justice.

But we’ve got a Republican Congress insisting President Obama shouldn’t even bother to nominate a justice to the Supreme Court. And we have a field of Republican presidential candidates saying that the Senate should block and obstruct any nominee, Michael.

So it’s on us to stand with President Obama and make sure that Mitch McConnell and his fellow conservatives in Congress allow President Obama to do what is his right and responsibility — name the next Supreme Court justice.

Yet the Constitution is clear that the President can only appoint Supreme Court justices “by and with the Advice and Consent of the Senate.” (For those liberals unfamiliar with the Constitution, refer to Article II, Section 2. It is not close to the “right to privacy” that some have read into the document.) If McConnell wants to wait until the election to act on the vacancy, he can do so although there is the risk that he may not be Majority Leader when the next President is inaugurated given the composition of the Senate and those up for election.

I’ve seen it pointed out that Justice Anthony Kennedy was seated in the last year of Reagan’s term; however, Kennedy was actually appointed in November 1987 and seated in February 1988. (Had the Democrats who ran the Senate been as congenial to Reagan’s initial nominee, Robert Bork, the election-year appointment would have been unnecessary.) They fail to recall how Senate Democrats treated President Bush in 2008 with regard to nominees, a practice sometimes known as the “Leahy rule.” (Democrats, of course, blame longtime GOP Senator Strom Thurmond, who blocked President Johnson’s attempt to promote Abe Fortas from associate Justice to Chief Justice in 1968, after Johnson decided to forgo re-election.)

In truth, the last time such a maneuver was performed was in 1956 when President Eisenhower made a recess appointment of William Brennan in October, just before his eventual re-election. (Brennan was eventually confirmed by the Senate in a near-unanimous vote.) Obviously such an avenue would be available to Barack Obama, and it would be particularly attractive to Obama given his interpretation of “recess.”

As it so happens, the Senate is in a recess through February 22, and the Left is salivating at the prospect of Obama rapidly selecting a nominee this coming week. Even if not confirmed, the appointee would sit until the end of the Senate’s term in early January, 2017, presumably reversing many of what were perceived to be 5-4 decisions in the favor of conservatives.

So if I were a liberal judge who is called by Barack Obama as a potential SCOTUS member, I would take the job without much of a worry about it being temporary. First of all, I can just see Obama making the appointment and daring the Senate to call him on it. Given the propensity of Mitch McConnell to roll over to Obama he won’t do so.

Further, if the Republicans nominate Donald Trump to be their nominee (which polls suggest may occur), based on current polling data he’s the most likely to lose to the Democratic nominee. And if Trump’s campaign sinks the GOP’s chance to retain the Senate the new nominee would either finally win formal appointment or be granted yet another recess appointment through early 2019.

Meanwhile, a voice of sanity on the SCOTUS will be laid to rest and missed more and more as the years go on. Indeed, we are screwed.

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