Don't Let Obama Fill Scalia's Seat

Congress has frittered away virtually every constitutional power save one:  the power of the Senate to deny presidential appointments to the federal bench.  If Senate Republicans expect conservatives to ever trust them on anything, then they must decline to consider Obama's nominee to replace Justice Scalia. 

There is precedent for this.  In 1968, when Republicans were a Senate minority possessing only the power of filibuster, Everett Dirksen prevented Lyndon Johnson from appointing Associate Justice Abe Fortas to replace retiring Chief Justice Earl Warren and then appointing Homer Thornbury to take Fortas's seat as an associate justice.

Senate Minority Leader Dirksen did not run the Senate or control any Senate committees.  Republicans, in fact, held only 36 Senate seats, and several of these were leftists.  Yet Dirksen was able to cobble together enough senators to prevent Johnson from filling a Supreme Court office during a heated election year.  The left, of course, squealed and yelled, but it lost, because Senate Republicans and a handful of Senate Democrats stood firm.

If Everett Dirksen, who was only a moderate conservative holding a very weak hand, was able to thwart LBJ, who had been Senate majority leader before he was vice president and who knew all the ropes and all the tricks of the Senate, then Senate Majority Leader McConnell clearly has the power to do the same.

In fact, all McConnell and the Republican leadership have to do is to decline to consider any nominee appointed by Obama.  State clearly that the Senate is exercising its constitutional power and, unlike Obama who presumes powers he does not have, that the power to confirm or deny a presidential appointment is at the heart of the Senate's control of the Executive Branch.

This is also crunch time for any candidate for the Republican presidential nomination.  The argument is quite simple: the presidency and the Supreme Court threaten to overwhelm all other parts of our constitutional system.  Let the American people this November decide who will pick the next Supreme Court justice.

In fact, make this presidential election a battle about the proper role of the federal bench in our constitutional system.  Those who want more power flowing to unelected and unaccountable figures in Washington vote for the Democrat nominee.  Let those who think that lawyers and judges ought to run our nation support the Democrats.  Let those who want power to devolve back to the people and to the states support the Republicans.

The president could, of course, make a recess appointment to the Supreme Court – an appointment that would end with the new Congress and new president – but there is no right of any president to insist that his nominees be confirmed or even considered.  Any president who has acted as arrogantly and contemptuously toward the powers of Congress as Obama deserves no special consideration from the Senate at all.

The stakes are monumentally high.  Winning the presidency while delivering the Supreme Court to a radical leftist majority means guaranteeing that the drift of our nation into secular humanism and unconstitutional arrogations of power to judges, federal administrators, and others who are immune to our wishes will continue toward a cataclysmic end of the America we have known.

Moreover, this is a battle that we can win, if those Republican leaders who seek our help every election cycle will stand boldly against the left.  It has been a long, long time since Republican leaders in Congress have actually given conservatives anything like a political victory.  If these Republicans cannot or will not do so now, then it is truly time for conservatives to abandon the Republican Party and form, instead, around a political party and movement that are serious about what happens to our nation.

The timing, in some ways, is awful for conservatives, but in other ways it is perfect.  Do this one thing – let the next president and next Senate fill this seat – and we will begin to trust you again.  Fail, and there is no reason for conservatives to ever trust Washington Republicans again.

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