Finding Cinderella: If the Glass Slipper does not Fit, do not Confirm! The Stakes at Play in the Fight for Justice Scalia’s Replacement

Opinion by Bruce Linkermann

 

On the 13 February 2016 Justice Antonin Scalia peacefully passed away in his sleep. But the impending United States Senate Committee on the Judiciary’s confirmation battle for his successor will be anything but peaceful. After all, his successor will be vitally important for the future direction of the United States, even more important than the nominees in a Presidential election year and the future President.


But why would a judge’s future successor be more important than the nominees in a Presidential election and even the future President? Well, this is turning out to be an election year that is bordering on the ridiculous—just listen to or read any of Republican nominee Trump’s speeches, debate performances or tweets and retweets. (Amazingly, he even balked at renouncing a Ku Klux Klan endorsement on CNN with Jack Tapper and quoted Mussolini with pride!)


I won’t even waste time getting into the “political revolution” Bernie Sanders is fomenting for. Let’s just say that he is two centuries behind the times and tragically misguided. (Personally, someone should replace his bedside copy of The Communist Manifesto with Hayek’s The Road to Serfdom.)


It does not take a gypsy fortune-teller to gaze into the election 2016 crystal ball to predict that Hillary Clinton is going to stroll into the White House on November 8, barring an indictment for mishandling classified State secrets of course! What a bunch of winners we have on display. Putin is surely licking his lips.


But since the Republican party should maintain their control of the Senate and House of Representatives in the 2016 Congressional elections (there’s no overwhelming suspicion that they will lose either: Democrats need to reclaim 5 seats in the Senate, which is unlikely but not impossible since 24 Republican seats are up for re-election and 10 Democrat seats, and 30 seats in the House of Representatives, which is nearly impossible) America will in all probability continue to be—as Abraham Lincoln feared—a house divided, with a Democrat in the White House and Republicans controlling the Legislative branch. Not much will change, just more Washington gridlock with flaccid foreign policy.


But the Supreme Court is an entirely different story. The present composition is delicately balanced now (4 – 4 split; well, mostly despite Chief Justice Robert’s Obamacare disaster decision). Thus the next Justice will determine the judicial ideology of the Court. Will it be a judge of the sort of Justice Thomas’ ilk (beautifully denouncing the doctrine of substantive due process in Obergefell v Hodges (“Obergefell”)—what a magnificent dissent, surely one for the ages)—or will it be a judicial activist such as Justice Ginsburg or worse Justice Kennedy, writing beautifully emotive prose devoid of proper legal reasoning? (Just read the majority decision in Obergefell and then read Justice Scalia’s dissent: good times to be had my friends, I promise).


But what does this mean? Who cares about the judicial philosophy of the court?


Well, ever since Marbury v Madison (“Marbury”) in 1803 the American Judiciary, especially the Supreme Court, has risen from the weakest branch of government to the strongest. As they showed in Roe v Wade (“Roe”) and more recently in Obergefell, the Supreme Court has taken it upon themselves to impose their own morality on the people when their morality differs from that of the people.


It’s a sad day for democracy when a majority of judges on a single court decide to override the legitimately democratic will of the people with nothing more to back them up other than an unconvincing appeal to moral platitudes and the doctrine of substantive due process. What is to be made of a court that interprets the phrase “nor shall any state deprive any person of life, liberty, or property, without due process of law” to mean that the they have the power of judicial review to hold state laws unconstitutional because they do not agree with the moral premise of the law before them?


What I find more disconcerting than holding that abortion and same-sex marriage are fundamental rights protected by the “liberty” in the Due Process Clause—we can all agree that the framers of the 14th Amendment did not contemplate either—is that the “liberty” protected by the Due Process Clause is now viewed as hallowed turf, rights that simply cannot be withheld, which in fact completely disregards the rest of the phrase which clearly means that “life, liberty and property” can be constitutionally withheld by the due process of law.


Now I fail to comprehend how democratically passed laws without any semblance of corruption or impropriety of procedure fail to constitute “due process of law”. Essentially, the Texas abortion statute in Roe and the same-sex statutes in Obergefell were legitimately democratically passed laws. And yet, these laws were ruled unconstitutional simply because the majority of Justices decided that the morality of the laws were personally unacceptable to them, so they took it upon themselves to use the Constitution to impose their own moral imperatives (I cannot stress this enough, they “used” the Constitution; they did not interpret the Constitution without passion and prejudice).


Now, if that is the role of the Supreme Court, then what are we to make of the most famous dictum in American Constitutional Law, of Chief Justice Marshall’s dictum in Marbury: that “[t]he government of the United States has been emphatically termed a government of laws, and not of men”.


The right of the people to self-government is surely the most fundamental of all constitutional rights. That was the whole point of the American Revolution. Justice Scalia’s successor is going to determine whether the Court’s judicial philosophy stays true to Chief Justice Marshall’s dictum and upholds the right of the people to self-government, or whether the Court continues its lurch towards judicial activism so as to become a powerful judicial oligarchy.


Choose wisely Mr McConnell and Mr Grassley, or simply refuse to confirm.

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