|home > archive > 2017 > this article|
Scalia's legacy and Schumer's real SCOTUS strategy
By Mark Alexander
In February 2016, the death of Antonin Scalia, the Supreme Court's most articulate and faithful Rule of Law advocate, threatened to upend the High Court's tenuous 5-4 conservative majority. It also threatened to punctuate Barack Obama's legacy by giving him a third Supreme Court appointment — and thereby the means to undermine our Constitution for a generation.
Justice Scalia, appointed by Ronald Reagan in 1986, was the constitutional firewall between Rule of Law and rule of men; between those who believe that words have meaning, and those who seek to, as the venerable former Senator Sam Ervin (D-SC) put it, "interpret the Constitution to mean what it would have said if [they], instead of the Founding Fathers, had written it." Justice Scalia understood, as Thomas Jefferson warned, that such interpretation would render our Constitution "a mere thing of wax ... which [judges] may twist and shape into any form they please."
On such judicial malpractice, Justice Scalia, in accordance with his oath "to Support and Defend" our Constitution, wrote, "As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically." For his entire tenure, he manned the wall against those who subscribe to the errant notion of a so-called "living constitution," one that can be shaped and twisted to comport with their political ideology.
The most notorious manifestation of such political ideology in the courts is that which promotes the "wall of separation" myth — with the ultimate statist objective of devaluing the foundational principle that Liberty is the birthright of all people, as "endowed by their Creator."
A month after Justice Scalia's death, Obama nominated a "moderate," Judge Merrick Garland, to fill the vacancy. If approved, Garland would have voted in lockstep with the Court's four reliably ultra-leftist justices, and thus would have substantially moved the Court away from constitutional Rule of Law. However, the Senate, under the much-maligned leadership of Majority Leader Mitch McConnell (R-KY), deferred action on the nomination, in effect making the 2016 presidential election a referendum on the direction of the Supreme Court. We owe a debt of gratitude to Sen. McConnell for, in this very important instance, standing his ground in defense of Liberty.
It was a long shot for McConnell, but despite what seemed insurmountable odds, Republican Donald Trump defeated Obama's heir-apparent, Hillary Clinton. Despite questions about Trump's political worldview, the president-elect laid the foundation for a very conservative administration.
Within days of his inauguration, President Trump delivered on his promise to nominate proven constitutional constructionists to the Supreme Court — starting with Tenth Circuit Court of Appeals Judge Neil Gorsuch.
Despite the nominee's exceptional qualifications, and despite the fact that he'd previously won unanimous "well-qualified" ratings from the American Bar Association and unanimous consensus by the Senate for his federal circuit court nomination, Sen. Minority Leader Chuck Schumer (D-NY) filibustered — for no other reason than political partisanship. Consequently, Sen. McConnell invoked the "Reid Rule" to alter the Senate rules just as Schumer and his fellow Democrats did in 2013, in order to bring the Gorsuch nomination to the Senate floor for a vote.
The resulting confirmation of Judge Gorsuch by a disgracefully close vote of 54-45 — the majority included just three Democrats — was a major victory for Rule of Law. (The missing 100th vote was that of Sen. Johnny Isakson (R-GA), who was not present because of health issues.) Now-Justice Gorsuch will have an immediate impact on major cases pending before the Court.
Predictably, there was much fake outrage from Schumer and his Demo Senate syndicate about the rule change. "The irresistible, immutable logic is," said Schumer, "if the nominee doesn't get 60 [votes], you change the nominee, not the rules." But in 2013, when then-Senate Majority Leader Harry Reid changed the rules for federal bench nominees for precisely the same reason — to avoid filibuster — Schumer proclaimed, "We much prefer the risk of up or down votes and majority rule [on judicial nominees] than the risk of continued total obstruction. That's the bottom line no matter who's in power."
For the record, while the rule change is dramatically referenced as the "nuclear option," it is not. It more appropriately should be called the "constitutional option," as Article I, Section 5 specifies, "Each House may determine the Rules of its Proceedings..." The Senate adopted its first rules in 1789, and in 1892 the Supreme Court ruled (States v. Ballin) that Senate rules can be amended by a simple majority vote. The concept of a Senate filibuster as an obstructive tactic was first used in 1837 and only rarely since then until recently, when the Democrats sought to overtly and grossly politicize the Supreme Court.
And recall that the most severe assault on our Constitution and the Supreme Court in the 20th century was undertaken by Demo-gogue Franklin Delano Roosevelt. Anticipating Supreme Court rulings against many of his patently unconstitutional "New Deal" policies, which he later arrogantly outlined in his "New Bill of Rights," FDR attempted to expand the number of justices on the High Court, thereby allowing him to flood the bench with leftists in order to win majority rulings. Fortunately, that tyrannical exercise failed.
So, back to the present-day antics: Why the "total obstruction" by Schumer now? Why force McConnell's rule change on an otherwise unanimously qualified Supreme Court nominee?
As with most high-stakes games, the political contest for judicial control of the nation's future is a four-dimensional chess match, despite the mainstream media's portrayal of that contest as one-dimensional. Fact is, most in the MSM and their dumbed-down viewership are unable to perceive anything but single dimensions.
Much has been written about Schumer's "bad strategy," forcing the rule change on a SCOTUS nominee who would've only restored the Court to its balance prior to Scalia's death. However, I believe that Schumer's strategy is a long-shot gambit based on Democrats retaking control of the Senate in 2018.
Unfortunately for Schumer, more Democrat Senate seats are at risk than Republican seats in the coming midterm election. These include Jon Tester (D-MT) and Claire McCaskill (D-MO), both of whom voted against Justice Gorsuch, and Joe Manchin (D-WV), Heidi Heitkamp (D-ND) and Joe Donnelly (D-IN), whose seats are also in peril despite their having broken ranks to support Gorsuch's nomination.
But remember: Trump's victory was a long-shot for Sen. McConnell ... and Schumer, like McConnell, has few other options.
By Schumer's calculation, if Democrats can retake control of the Senate in 2018, they can hold the line against any further defense of Liberty and the U.S. Constitution by another Trump SCOTUS nominee. If they are then able to regain the executive branch in 2020, they can claim it was Republicans who set the current precedent to avert filibuster, assuring that their nomination of the most leftist jurists in history will be approved on a simple majority vote. (Notably, the lower courts are already packed with statist liberals.)
Until then, they can only hope that their frail 84-year-old justice, Ruth Bader Ginsburg, arguably the most leftist member of the Court, can survive until Democrats are back in control in order to avert another Trump appointment before 2018...
Though the Democrat prospects for 2018 don't look good, Trump is playing it safe. His administration is quietly lobbying Justice Anthony Kennedy to retire now, rather than sometime after 2018.
Though Chief Justice John Roberts administered Neil Gorsuch's oath in a private Supreme Court ceremony on Monday, it was Associate Justice Kennedy, for whom Judge Gorsuch had clerked, who administered his oath at the public White House ceremony. In a sense, the Gorsuch appointment was a salute to Justice Kennedy, and the Trump administration has lined up two more highly qualified U.S. Circuit Court of Appeals judges, both of whom also clerked under Kennedy, as prospective candidates for his replacement. They are Judge Brett Kavanaugh (age 52) and Judge Raymond Kethledge (age 50).
If Kennedy accepts the overture, the next Trump appointee will move the Court in favor of Rule of Law and restoration of constitutional order. Let's hope Justice Kennedy, a Reagan appointee, accepts the invitation.
For, as an age-old reminder of the importance of Trump's next nomination, Founder John Adams gives us the last word on Rule of Law: "[A] Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever."
Mark Alexander is the executive editor of the Patriot Post.