Justice Scalia’s Death Sets up Confirmation Fight

UPDATE: Within an hour of this piece being published news broke that Senate Majority Leader Mitch McConnell (R) announced, to his credit, that he does not believe the U.S. Senate should confirm any Supreme Court nominee until after the November election. Sen. Ted Cruz was the first U.S. Senator and first GOP presidential candidate to suggest the Senate hold off on any confirmation until after the election. Hopefully Republicans keep their word on this.

Multiple news sources are reporting today that U.S. Supreme Court Justice Antonin Scalia, a stalwart champion of a strict, originalist interpretation of the Constitution, has died. His death sets up what could be a confirmation fight of historic proportions as President Barack Obama looks to cement his legacy with a third appointment to the high court.

With controversial decisions often decided by the narrowest of margins on the Court, the stakes could not be higher for both sides when it comes to who will replace Scalia. First, President Obama has repeatedly seen his signature accomplishments end up before the Court in some fashion or another. Cementing his radical legacy with a decidedly liberal court would ensure that almost no legal challenge against his policies would result in their repeal.

Second, when a “conservative” decision emerges from the Court right now it is because Justice Anthony Kennedy joined the 4 generally conservative (Chief Justice John Roberts has proven he can go either way sometimes) members. Scalia was decidedly conservative, meaning that replacing him with a liberal doesn’t protect the status quo, but instead marks a landmark shift in the Court’s composition.

Third, Scalia, who was 79, and his fellow conservatives are aging while more recent appointments by Obama (Sotomayor and Kagan) are (relatively) younger, meaning they and a potential third Obama appointee will be on the Court for decades to come.

As Republicans voters look at the field of presidential contenders seeking the party’s nomination, they should ask themselves which candidate is best equipped to handle judicial nominations. Republican presidents don’t have a good batting average when it comes to Supreme Court appointments. Even Ronald Reagan got it wrong once when he appointed Anthony Kennedy who is, at best, unpredictable.

The next question Republicans should ask themselves is will Senate Majority Leader Mitch McConnell exercise the Senate’s prerogative to reject presidential appointments and deny President Obama his hail-mary attempt to enshrine his ideology on the Court. The U.S. Senate must “advise and consent” to presidential appointments, including federal judicial nominations, before they take effect.

Unfortunately, McConnell is hardly a warrior for conservatism or the principles so many in the Republican Party hold dear. Paranoid of crossing the Washington establishment, McConnell governs by consent of the salons, not by the courage of his convictions of the confidence of his – or his party’s – principles.

There is no requirement that Republicans in the Senate give President Obama what he wants when it comes to Supreme Court nominees. The stakes are higher in this fight than perhaps any previous judicial nomination fight, and with Republicans standing a strong chance of capturing the presidency this November, denying the President his appointment for a few months could be the most important thing Senate Republicans do all year.

Doubtlessly if Senate Republicans refuse to acquiesce to the President editorial writers will accuse them of stonewalling, of creating gridlock, of reducing the public’s confidence in government. Soon enough pollsters will crow that Republicans will certainly lose their Senate majority if they dare to stand up to President Obama and leave the Supreme Court seat vacant until a new president is sworn in.

But at moments like this it is helpful to remember where the GOP base is at right now, and where the country itself is as well. Both political parties are rewarding candidates who at least claim to be outsiders (never mind that Sanders is a career politician and Trump a career salesman who would switch principles if it meant more votes), and while a majority of GOP voters don’t like Trump, conservatives like Cruz and Rubio are also outsider (Cruz more so) candidates with serious clout and far more electoral potential.

Between the three – Cruz, Rubio and Trump – only one has proven that he is willing and able to bring the U.S. Senate to halt to stand up for what he believes in: Cruz. Another U.S. Senator, who is no longer in the race, has also brought the Senate to a halt on the grounds that principles are important: Rand Paul. When Cruz and Paul filibustered the Obama agenda others, such as Mike Lee, joined them. Even if Senate Republican leadership is hesitant to act, it could be that the rock-ribbed conservatives in that body decide to draw a line in the sand when it comes to the Obama agenda and say that they will not allow the Senate to approve the President’s Supreme Court nominee.

It will be a very interesting summer.

Meanwhile Sen. Cruz put this out on Twitter:

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Brian Sikma

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