Scalia Vacancy: A Hill to Die On

My first reaction to the death of conservative Supreme Court Justice Antonin Scalia on February 13 was fear.

Was it the fear that Obama would get a liberal replacement on the Court? Or the fear that the political fight over the vacancy would hurt Republicans in November? I don’t know. Because the next thought I had was that the Republican Senate would never consent to an Obama nominee in this election year.

So when Senate Majority Leader Mitch McConnell said that “the American people should have a voice in the selection of their next Supreme Court justice,” he was merely confirming what I had already intuited. Any Republican senator voting for an Obama Supreme Court nominee would face the end of his career. Period.

Now pundits are talking about various approaches President Obama might take to nominating a successor. He might nominate a stick-it-in-the-eye liberal. Or he might nominate a Republican nominee that Republicans would find it hard to vote against. Or he might appoint a recess justice.

But I think that Obama’s nomination strategy is beside the point. For conservatives, the interim Supreme Court after Scalia tallies up as three conservatives and four liberals with Justice Kennedy in the middle likely to give liberals what they want in headline cases, as in gay marriage.

That’s bad enough. For President Obama to get another liberal on the Court means that the 4-3 Court becomes a 5-3 liberal court that does not need the vote of Justice Kennedy to pass its liberal agenda. For conservatives, that is a hill to die on. It doesn’t matter what the optics are, what the politics are, how the issue might tilt the November election. We cannot allow President Obama to flip the Court.

Mind you, it could be worse if we get a Democratic president and a flipped, Democratic Senate in November. So everything depends on winning the presidency and holding the Senate.

When you think about it, the untimely death of the great jurist has a huge silver lining. It concentrates the mind of every conservative in America. Because everything is riding on the 2016 election.

For liberals, of course, it would be really cool to have a progressive majority on the Court. Why, then they could legislate unisex bathrooms and a feminized military and death to fossil fuels from the bench. That would be cool, but the present Roberts Court already gave them the big decisions, like ObamaCare and gay marriage.

For conservatives, a liberal court looks like the end of America. All kinds of conservatives would be impacted. Let’s run down the six kinds of conservatives that Ken Blackwell identified in 2008, and that I listed here with their main issues.

Social conservatives -- judges

Christian conservatives -- judges, religious freedom, home schooling

Second Amendment conservatives -- judges

Economic conservatives -- taxes and spending

Philosophical conservatives -- limited government

National Security conservatives -- terrorism

For social conservatives, a new liberal justice means the end of the family in America; for Christian conservatives a new liberal justice means the end of Christianity in America; for Second Amendment conservatives, it means the end of guns in America; for economic conservatives it means the end of economic freedom in America; for philosophical conservatives it means the end of the Rule of Law; for national security conservatives it means the end of the military. Okay -- so that’s exaggerating a bit.

Since an election year Obama Supreme Court nomination turns everyone into a broken-glass conservative that will crawl over broken glass to vote in November, you might very well think that President Obama’s wise strategic move would be to bow to precedent and not nominate a candidate to fill Justice Scalia’s seat on the Supreme Court. That way, he and his brilliant aide Valerie Jarrett would think, conservatives could go back to sleep and Democrats would get their best shot at electing Herself and flipping the Senate. But somehow I don’t see the president doing that, not the president that started out his presidency sneering “I won” to the loyal opposition.

The legacy of Barack Obama is that he took the glorious vision of Judis and Teixeira’s Emerging Democratic Majority and fried it. How? He did it by acting as though governing was the same as electioneering. In an election you do what it takes to divide the electorate and get 51 percent of the vote. But you govern by pretending to create consensus, and you do that by buying the votes of the opposition to induce them to join your “bipartisan consensus.” Of course, it doesn’t help that ObamaCare stinks, his economic policy stinks, and his foreign policy stinks.

Antonin Scalia, Associate Justice of the United States Supreme Court, was a great American. Let’s honor his memory by electing a Republican president and seating a solid conservative on the bench.

Christopher Chantrill @chrischantrill runs the go-to site on US government finances, Also see his American Manifesto and get his Road to the Middle Class.

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