The Constitutional and Principled Solution to Scalia’s Replacement

“I’ve abandoned free market principles to save the free market system” – George W. Bush

This is the statement that woke up many Conservatives in American’s and helped inspire the Tea Party Movement. Fast forward eight years and Conservative are yet again at a cross roads and how they act will greatly determine the future of America. The Constitution and America’s Founding principles are easy to support when they go your way. However it is standing for those principles when they potentially hurt or go against you, that reveals and helps build your character.

Last week America and the Supreme Court lost a true patriot in Antonin Scalia RIP. Sadly instead of mourning a great man and remembering his greatness, many decided to turn to politics and start the debate over his replacement. Even worse many Conservatives and many GOP Presidential hopefuls have now turned the nomination process into a political game. The GOP in the Senate spoke immediately how they would not approve anyone Obama nominated (which within forty-eight hours started walking back). Many of the Presidential candidates took a different path explaining that President Obama was a lame duck, how they desire to turn 2016 into a referendum on the future of the Supreme Court and quoting an eighty year precedent of not confirming Supreme Court Judges.

I am now hearing arguments from many Conservatives of how many cases are 5-4 and a liberal replacement by Obama would swing the court left and the country may never recover. Let me be perfectly clear – The Constitution is NOT A PICK’N’MIX. You are either for all of it, or you are for none of it. Sadly it seems many people have invoked their inner George Bush and are seeking to abandon the Constitution to save the Constitution. I have four major problems with this, so let me explain:

One: Arguments are UNCONSTITUTIONAL!!!

What does the Constitution say about Supreme Court Judges? Well Article two, Section two states:

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Did you read anything above about lame ducks, elections years or eighty year precedents? Nope. The Constitution is clear. President Obama has the Constitutional power to nominate someone which should be encouraged, and the Senate has the power to provide advice and consent.

Two – SCOTUS Should NOT be About Politics

There are certain parts of government that should be above the usual daily political process and the Supreme Court is one of them. Here is the oath a Supreme Court Justice takes:

“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Is there anything about parties there? Nope. I would encourage Conservatives to have a litmus test for ALL judges of the following:

  • Do you believe in original intent?
  • Do you believe in the Constitution as written or do you believe it is a living breathing document?
  • Do you believe the Supreme Court is impartial or do you believe it is just a body to rubber stamp the agenda of the Presidency?
  • Do you believe the Supreme Court should rule on laws or does it have the power to re-write laws?
  • Do you believe any President has the power to subvert Congress or does Congress have a role to play?

The approval or rejection of the potential justice should be based on the answer to these questions, not which President nominated them, which party has control of the Senate, and regardless of which year they are nominated. The answer should be the same in year one of a Presidency as in year eight.

Three – Constitution is NEVER Up for Election

Some of the Candidates running said they want to make 2016 a referendum on the Supreme Court. This is setting a very dangerous precedent. This is saying the Constitution is up for election. If it is okay for Conservatives to do this in 2016, what is stopping the democrats doing something similar in a future election. For example, what if they decide to make an election a referendum on the freedom of speech versus political correct speech and what would happen if political speech won?

America is an exceptional and unique nation for many reasons. However right at the top of that list is your Constitution, how you changed man’s relationship with their fellow man, with their government and lastly understanding that rights come from God NOT a government, political party, President or King.

Thus the Constitution is not up for election, nor should it ever be. Doing so would move America closer to being like a modern day European Democracy and there is nothing unique or exceptional about that.

Four – Constitution NOT Precedent / Case Law

Lastly, some who read this will consider this a very minor point but I believe it is critical to understanding the erosion of the Constitution today. Many today who study law do not study the Constitution, they study case law or precedent. If you ever watch any of the criminal drama’s on TV like Law & Order, look how many times they actually site the Constitution. Instead they always cite precedent and case law.

What is precedent? It is what one judge said at one time in one case said and somehow that has standing which is power. Over time this has helped make the Constitution effectively nul-in-void. In fact you know have justices looking at foreign laws and using them in rulings.

In my opinion, if America wants to get back to being a Constitutional Republic, the Constitution must ALWAYS be front and centre, and the truth is many GOP candidates cited more about precedent and emotions than the Constitution when it came to the replacement of Antonin Scalia. Is that the America you want?

I recently released a podcast exclusively on The Blaze discussing this topic and also addressing the Trump law suits and remembering Antonin Scalia. Please consider listening to it here or on Soundcloud or ITunes.

4 thoughts on “The Constitutional and Principled Solution to Scalia’s Replacement

  1. You are absolutely correct. It is subtle, but distortions of Constitutional principles through court rulings can be insidious responses to the partisanship that drives our democracy. While it may be concerning to imagine the Constitution becoming “null and void,” we’ve a ways to go before that happens. American citizens still hold avenues in the democratic process that cannot be duplicated in many other countries. And while this election is heightening the party divisions, it is preferable to the apathy that seems to be pervasive in the culture of today. We cannot condemn executive process if we truly embrace that which dictates the process. Let’s hope that cooler heads prevail, and that discussion and passion is directed to higher priorities.

    • May I ask how or why you think you are a ways away from the Constitution becoming null and void? What else can be done to it to make it happen? Also if I may ask a question – which amendment in the bill of rights is empowered today? God bless

  2. I’d say your article while good missed the mark in a couple of areas/points. First, in para. 1 please note and remember that the constitution does NOT say the Senate has to approve any or all nominees NOR does it offer a time frame for completing that approval process. Hence, the current Senate can, as many past Senates have, delay any hearing or decision as long as they like. It’s been done to us numerous times and the GOP needs to grow a pair and do it to them this time.

    Second, there are a KEY question you did not explicitly include. If you believe in original intent and the written words, please give us specific examples of rulings, writing, and/or speeches that unequivocally demonstrate that belief or position.

    • Thanks for your comment John. Where did I say they should approve a nominee or that there was a timetable? The bigger point to me is HOW you fight this. I do not agree with just stopping someone because the opposition is nominating them. I am fighting for the arguments to be based around the Constitution. I am troubled by people who are okay with stopping a nominee just because it has been done before? Since when do two wrongs make a right?

      Secondly I love your additional suggestion. I hope someone reads it and uses it in the next hearing. God Bless you. JD

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