Senate majority must confirm an originalist to succeed Scalia

Discussions about the political consequence of Antonin Scalia’s death have already begun in earnest. That may be unseemly to some, but it is inevitable in this high political season. In the video above, Hugh Hewitt makes a profound observation about our current moment. Among other things, he says this:

If I were a Republican, whether the majority leader all the way down to the county clerk and every nominee, I would say very simply, no hearings, no votes. Lame ducks don’t make lifetime appointments… and I would simply add the base will not forgive anyone. Senators will lose their jobs if they block the blockade. There should be an absolute blockade on this.

Why is Hewitt so insistent on this point? Why would the “base” be up in arms about this vacancy in a way they weren’t when President Obama made his previous two appointments? Because this appointment has the potential to change the balance of the court in a way that the previous four nominations did not. 

The current vacancy gives the President the chance to nominate a justice to fill a seat that has been occupied by a conservative for thirty years. In short, it’s an opportunity to bolster a liberal majority on the High Court—one that could stand for another generation or longer. Given that almost every important question in our national life is determined by the Supreme Court (abortion, marriage, religious liberty, etc.), you can see why filling this seat will be so politically contentious.

On the one side, you have conservatives saying that the Senate should not allow a lame duck president to build a radical majority on the court. On the other side, you have liberals arguing that it’s the President’s prerogative to put his man on the high court. The truth is that Article II of the Constitution gives the power to nominate judges to the president and the power to confirm them to the Senate. That means that the President is well within his Constitutional rights to nominate whomever he wants. It also means that the Senate is well within its Constitutional rights to reject whomever they want. We’ll see what happens.

In the meantime, Hugh Hewitt is right. Conservative politicians should see this as a do-or-die moment. The conservative majority in the Senate must not confirm any nominee to the high court who is not an originalist. If the president will not appoint someone with the same judicial philosophy as Scalia, then the Senate should do whatever has to be done to block his nomination. And they should resist nominations for the rest of President Obama’s term if need be. It’s that important.

As a social conservative and as a constituent of the Senate Majority Leader, this is something that I am blood earnest about. This is one of my highest (if not the highest) priorities as a voter—to see originalist jurors appointed to the Supreme Court. Any conservative in the Senate who falters at this moment needs to be prepared for this to be his last term in office. I don’t care who it is. We are watching. If they whiff it, we will actively oppose them in the primary or general of their reelection. It’s just that simple, and we won’t forget what they do now.

It is no exaggeration to say that the 2016 election has just become the most consequential election in our lifetime. The most likely scenario is that the next president will nominate Scalia’s successor. It remains to be seen who will be sitting behind the desk at 1600 Pennsylvania Avenue when the clock strikes on January 21, 2017. The current front-runners (both Democrat and Republican) give us no reason for confidence that they would do any better than the current president when it comes to Supreme Court appointments. But the primaries aren’t over yet, and we may still get at least one candidate who would appoint Justices in the mold of Scalia.

We will know soon enough.

14 Responses to Senate majority must confirm an originalist to succeed Scalia

  1. Esther O'Reilly February 15, 2016 at 12:01 am #

    If Trump wins the nomination though, I confess that I would be disheartened as a Senator, disinclined to fight tooth and nail, because what would be the point? Until then, I agree with you, but my sympathies will be with every conservative senator if they are placed in that no-win situation, especially Cruz.

  2. Matt Martin February 15, 2016 at 10:44 am #

    “Lame ducks don’t make lifetime appointments”…unless they are Republican lame duck. Then it’s the right thing to do.

    This is a choice that could really backfire on Republicans. America is now a country that wants equality. I don’t see how shutting down the will of the people to elect an anti-equality justice will help Republicans in November. Hillary will not only win, but should see the Senate tip in her favor.

    And that’s how it will be framed.

  3. Kent McDonald February 15, 2016 at 11:01 am #

    Donald Trumps own sister is a judge that is pro-choice, pro same sex marriage and more. He describes her as a GREAT jurist. (She must be if she is a Trump, after all) Whether he could be trusted to nominate an originalist is highly suspect. The only Presidential candidate who has actually argued cases at the Supreme Court is Ted Cruz. (He won 5 out of 9 cases). He was a law clerk for Justice William Rehnquist (1995-1996). I would be much more comfortable with his nominations, since he has a discernible track record.

  4. Roy Fuller February 15, 2016 at 12:10 pm #

    I agree that “the Senate is well within its Constitutional rights to reject whomever they want.” I believe that it would be a dereliction of their duty to not even hold a hearing or a vote on the President’s nominee. Hewitt, whom I do not agree with on many issues, but nonetheless believe that he is intelligent, is wrong when he advises the majority leader to schedule no hearing or votes.

    • Christiane Smith February 16, 2016 at 11:49 am #

      “I believe that it would be a dereliction of their duty to not even hold a hearing . . . ”
      some people believe it will lead to a Constitutional crisis as almost a full year of an elected President’s office is being disregarded as a part of our constitution which senate members swore to uphold . . .

      we will reap what we sow . . . best think about the politics of obstruction . . . there is a pay-off and there is also a down-side . . . conservative people don’t want to win the battle and lose the war, but it is possible this is what may happen, as there have been in the past, Republican presidents who appointed justices while in their lame-duck year . . . the precedent exists for this practice

      also of concern is IF the Senate deigns to vet one of Obama’s choices, the Republicans should hope to present themselves as people of integrity if they have supported the candidate before for a lower court position . . . otherwise, the American public will again have a partisan show that divides and obstructs in a way that is questionable as to ethics.

      People need to think this through. They haven’t done that.

  5. buddyglass February 15, 2016 at 4:11 pm #

    Is Hewitt merely arguing that the Senate should refuse to confirm the nominee of a lame duck President, or does he go a step further and argue that the Republican-controlled Senate should refuse to confirm Hillary Clinton’s nominees as well, should she end up succeeding Obama?

    • Roy Fuller February 16, 2016 at 10:17 am #

      I believe Hewitt is only referring to any SCOTUS nominees brought forward by Obama. But he saying more than the Senate should refuse to confirm an Obama nominee, Hewitt is saying they should not hold any confirmation hearings or votes. Vote them up or down, but to not vote on a nominee is dereliction of duty. The fact that Democrats are said to have done the same at some point in the past does not make it acceptable now. I thought Republicans believed in following the Constitution.

      • Denny Burk February 16, 2016 at 11:34 pm #

        Article II of the Constitution does not require the Senate to hold hearings or even to have a vote.

  6. Bill Hickman February 16, 2016 at 2:24 am #

    I love how Hewitt half-heartedly attempts to make arguments about fair process – “Lame ducks don’t make lifetime appointments” – when, in reality, their argument is all about power. Despite what conservatives may believe, they aren’t entitled to call all the shots all the time in government. It stunk for liberals when conservative Scalia replaced liberal William Brennan, but Scalia was confirmed 98-0. When Obama nominates an eminently qualified moderate or center-left justice to replace him, Senate Republicans shouldn’t throw a tantrum. They should do the responsible thing.

    • Denny Burk February 16, 2016 at 11:32 pm #

      Totally agree. They should do the responsible thing.

      • Bill Hickman February 17, 2016 at 11:51 am #

        “the responsible thing”

        By which you mean, “leave the Court with only 8 justices until we elect a President who will appoint someone in the precise ideological mold of Justice Scalia.”

        So you think it’s responsible to insist that your ideological preference should trump everyone else’s right to have a properly functioning high court?

        • Denny Burk February 17, 2016 at 5:04 pm #

          The court is not “properly functioning” when justices believe their job is to read their own preferences and viewpoints into the law and Constitution. The role of a Supreme Court Justice is to interpret the law not to make law. So yes, it would be irresponsible to put any more justices on the court who refuse to do their job.

          • Bill Hickman February 17, 2016 at 6:03 pm #

            Setting aside your implication that other justices are “reading their own preferences and viewpoints” into the law and that Justice Scalia did not do that…

            Do you believe that federal judges or Supreme Court justices who do not have Justice Scalia’s views are “refusing to do their job”? If so, all of those judges have violated the “good behavior” requirement of Article III and should be removed, no?

            • Denny Burk February 17, 2016 at 6:23 pm #

              I don’t know if hermeneutical naivete is an impeachable offense. I’m simply saying that the judge’s role is to interpret the law according to the framer’s original intent. If he fails to do that, then the text of the law becomes infinitely malleable and subject to the whims and preferences of the judge. That is what we have now, and it is a slow-motion subversion of the rule of law. It makes justices into unelected oligarchs who substitute their own will for the law as written. That is what must change. That is why we need the Senate majority to insist upon originalist nominees or none at all.

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