Antonin Scalia (1936-2016)

This week we mourn the passing of a legal giant whose like may never be seen again.  Antonin Scalia was the living embodiment of the American Dream.  Born in Trenton, he approached every aspect of his life with a single goal – excellence.  He never disappointed.  As a Boy Scout – Order of the Arrow, scouting’s national honor society.  High School – first in his class and valedictorian.  Georgetown University – Summa Cum Laude  and valedictorian.   Harvard Law School – Magna Cum Laude.  Appointed to the Supreme Court in 1986 by Ronald Reagan  (you remember him, that other conservative who was too dangerous to be elected), Justice Scalia was an originalist, a term which is misunderstood by those who don’t know better, and purposely derided by those who know full well what it means and are pushing their agenda.  Simplistic explanations will tell you that an originalist interprets the Constitution in terms of what it theoretically meant in 1787, while more enlightened jurists recognize that the Constitution is a “living document” which must change to suit modern society.  That’s nonsense.  Much of constitutional law is based on that which is reasonable.  The originalist view is not extreme, it’s reasonable.  The Founders who wrote the Constitution argued for months about what it should say and what the words meant.  When completed and ratified, the various provisions of the Constitution meant what they said and said what they meant.  And the Founders didn’t lock America into an 18th Century vision of what our government must be.  They gave us Article Five, which provides two methods of amending the Constitution.  We’ve accomplished that 27 times since 1787.  The “living document” adherents will tell you that the words of those 18th Century men couldn’t possibly be applied to modern problems.  Don’t believe it.  The Fourth Amendment was written in 1791, and its words have never been amended.  The words of those old white men have successfully been interpreted to protect the rights of every racial and ethnic minority, and have tackled such issues as telephone and internet privacy and infrared imaging.  The truth is that we don’t have to arbitrarily change or ignore the words of the Constitution to fit the times.  Originalists understand that the document is alive.  It’s the liberals who want to kill it; for our own good, of course.  You see, Justice Scalia strictly adhered to the separation of powers set forth in the Constitution.  Each branch of the government has a defined scope of authority.  Scalia often warned that it was the job of the Legislature to say what the law is, and that discordant social issues should not be decided by nine judges in black robes.  Not a bad idea.  Instead, we have a chief executive (who fancies himself a constitutional law teacher) who warns us he has “a pen and a phone” and will rule by decree when it suits him.  Instead of a pen and a phone, maybe he should have the Constitution.  Which brings us to the politics.  No sooner was it announced that Justice Scalia had passed, than the political wheels began turning.  Now, we are told, there will be a battle over the appointment of his replacement.  Il Duce Obama hasn’t made a nomination yet, and already the media has suggested that, if Obama doesn’t get exactly what he wants, it’s due to racial discrimination.  It’s yet another case where facts and truth are not important.  Presidents have made 160 Supreme Court nominations.  Only 124 Justices have been confirmed.  That means that 36 of the nominees of non-minority Presidents have been unsuccessful.  Meanwhile Obama is two for two.  No matter.  No Justice nominated in an election year has been approved in nearly 80 years.  No matter.  The vile and repugnant Chuck Schumer  says we must approve whoever Obama nominates; it’s the Constitution, you see.  The same Chuck Schumer who, in 2007, declared that no George Bush Court nominee should be confirmed in the last two years of his term.  No matter.  Obama himself, as a Senator in 2006, sought to filibuster Justice Alito.  In another teachable moment, Obama, that noted constitutional scholar, taught us that the Senate must advise and consent.  He said the Senate must examine a nominee’s philosophy, ideology and record, and not just consider whether the nominee has the intellectual capacity to serve.  Yesterday, the White House announced that Obama “now regrets” making such comments.  He doesn’t regret that he said and meant every word, he only regrets that we remembered.  Obama has a perfect right to nominate, and the Senate has a perfect right to decide that what’s best for the nation is to wait till after the election to consider any nominee.  And when Senator Schumer complains of Republican obstruction, maybe someone will ask him to explain why the Harry Reid led Senate practically closed down for six years, failing to consider hundreds of bills passed by the House of Representatives.  No need for a battle.  The Senate should just say “No.”  Rest in peace, Justice Scalia.  You will be sorely missed.