Mourning, replacing Justice Antonin Scalia

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Dr. Malcolm Cross
Dr. Malcolm Cross

The passing of Associate Justice Antonin Scalia is a shock to the nation, touching off both a period of mourning and a frenzy of politics to fill his seat.

Justice Scalia was best known for using the doctrine of originalism to interpret the Constitution.  He liked to say that “The Constitution is not a living organism.  It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.”  He argued that the meaning attached to the Constitution should be what its writers intended, and that latter day judges and others should not reinterpret it to reflect their own prejudices.

Justice Scalia is most lionized by conservatives, especially for his opposition to the Supreme Court’s Roe vs. Wade decision, in which it announced it had discovered a constitutionally protected right to an abortion.  Yet while he personally opposed abortion, he said his reason for doing so was that the framers of the Constitution had no discernible intent to make abortion a right, and that actually their silence on the issue gave the states the right to legislate how they chose. 

Moreover, some of Scalia’s other conclusions could hardly be described as conservative.  For example, he supported the right to burn the American flag to express dissent, arguing that when the Constitution was written, burning effigies was a recognized form of legitimate protest.  Moreover, he fought to strengthen the rights of criminal suspects as guaranteed in the Bill of Rights.

  Scalia also said that the failure of the Constitution to mention specific rights which the people wanted did not preclude those who desired them from creating rights through the legislative process.  Indeed, one could argue that the creation of rights this way is more proactive and democratic than trying to secure them through unelected and unaccountable judges.

The issue of who should fill Supreme Court vacancies, and how, always important, has suddenly become the most important issue in the campaign, at least for the time being.  The Constitution says the president shall appoint, subject to confirmation by the Senate, all Supreme Court justices, and President Obama has announced his intention to nominate a new Supreme Court Justice soon. 

But Senate Majority Leader Mitch McConnell, and all six remaining Republican presidential candidates have said they oppose Obama making an appointment despite his possession of the constitutional power to do so.  They argue that given that this is Obama’s last full year in office, the choice of a Supreme Court justice should be left to Obama’s successor.

There is ample precedent for this Republican position.  In 1968, a coalition of Republicans and southern conservative Democrats thwarted President Lyndon Johnson’s attempt to replace retiring Chief Justice Earl Warren with a liberal Democrat and Johnson crony, Associate Justice Abe Fortas.  More recently, in 2007, Democratic Senator Charles Schumer of New York said the Senate should refuse to consider, much less confirm, any further judicial appointments from President George W. Bush.  In fact, it has become customary for Senators whose party does not have the White House to oppose the President’s judicial appointments as his term draws to an end in the hope that their party can capture the White House in the next presidential election and that their new President can fill the vacancies himself.

How the growing fight over Justice Scalia’s successor will unfold remains to be seen, but one thing is certain:  Each party will do its best to advance its own interests, no doubt convinced that its interests are the country’s as well.  But whether America’s interests will truly be advanced remains to be seen.

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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