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.