He was brilliant, witty, good-natured, and short. That was my impression of Justice Antonin Scalia when he visited Colorado Christian University in October 2014.
Other leaders and unstatesmanlike pretenders should study his example; Justice Scalia fought for the principles that sustain our Republic while remaining gracious to ideological opponents.
President Obama and his successor, if necessary, should nominate judges with exceptional character and fidelity to the U.S. Constitution . The Senate should be willing to confirm a nominee with a record of originalist jurisprudence.
An empty seat on the Supreme Court is not a crisis. Under President John Tyler, the Court had a vacancy for 27 months. More recently, the Court easily survived a year vacancy under Nixon. When the Senate disapproved of President Reagan’s first two picks, a seat was empty until Justice Anthony Kennedy was finally confirmed.
Even without a ninth member, the Supreme Court can still decide cases. In cases where there is a 4-4 split vote, the lower court’s decision stands. Both parties are likely to be dissatisfied if lower court decisions stand on several cases. A 4-4 split decision would mean the Little Sisters of the Poor will still be required to buy insurance that covers contraceptives and abortifacients. A Texas law regarding health and safety standards at abortion clinics will stand. California teachers who do not want to join the union will still have to pay dues and President Obama’s amnesty program will remain under injunction. Fortunately, the cases can be reargued when the Court returns to full strength. After all, the justices selected these cases because they believe a national precedent is needed.
Meanwhile, the president has a right to nominate whoever he wishes and the Senate should take up hearings, schedule permitting. Last year, delays over appropriations bills sent over by the House ultimately resulted in a last minute omnibus deal. All 12 appropriations bills should be signed into law before hearings are scheduled.
The Senate also has an obligation to fully scrutinize each nominee’s jurisprudence. In the words of then-Sen. Obama in 2006, “[T]he Constitution calls for the Senate to advise and consent… that includes an examination of a judge’s philosophy, ideology, and record.” He then joined the attempt to filibuster President George W. Bush’s nomination of Samuel Alito.
Likewise, the Senate should vet all nominees and reject any who do not have an originalist philosophy. Justice Scalia emphatically rejected the idea that the Constitution is a living document that can be interpreted according to the whims of the justices. He told the CCU audience, “If I had the other view of the Constitution — that it was an empty bottle, which was to be filed by my court, and it was my responsibility to decide … all these massive ethical questions — if they were all my call, I couldn’t sleep at night… I don’t agonize at all. I look at the text, I look at the history of the text. That’s the answer.”
He was right. If changes to the Constitution are needed, there is an amendment process for that.
The Constitution is a contract between the people and their government and like many contracts, it protects the more vulnerable party. If an employer says he considers an employment contract to be a living contract, the employee should expect longer hours, lower pay, and fewer benefits. If a husband wants a living prenuptial agreement, his wife should insist on an originalist understanding of the contract, especially the infidelity clause.
Likewise, a justice or a politician who wants a living constitution wants more power over the people. Justice Scalia understood the power belongs with us.
Krista Kafer (tokrista@msn.com) is co-host of “Kelley and Kafer” airing 1 to 4 p.m on 710 KNUS and a professor of communication at Colorado Christian University.
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