The seat left vacant by the death of Antonin Scalia can be filled, but he cannot be replaced. The plain-spoken lawyer from Brooklyn was an authentic originalist, dedicated to preserving the Constitution left to the republic by the Founders. He had the curious belief that words actually mean what they say. Now that its conservative anchor has been lost, the Supreme Court is at risk of drifting into deep and dangerous water. The Republicans can make sure that doesn’t happen if they can find the courage to resist the pressure, abetted by the Democrats and the mainstream media, to cave in the name of civility and partisan comity.
Never one to let a crisis go to waste, President Obama has signaled his intention to serve up the replacement for Justice Scalia to tip the court’s balance to the radical left. In his seven years in office, Mr. Obama set about to tilt the High Court leftward with the appointments of Sonia Sotomayor in 2009 and Elena Kagan in 2010. With the death of Justice Scalia, the president has his opportunity to end the court’s precarious 5 to 4 conservative advantage, fragile as it is, and lock up a majority liberal bloc for decades.
The president knows well that a left-wing court could make the legacy he wants to leave. The docket awaits. In one appeals case, Whole Woman’s Health v. Cole, the court will hear the argument of the State of Texas for common-sense restrictions on abortion to protect a woman’s health, including a requirement that abortionists must have hospital privileges, to guard against the consequences of a medical emergency. The court had already heard arguments in Friedrichs v. California Teachers Association, a challenge to the unions’ attempt to force nonunion employees to pay dues to a union. Only last week, Justice Scalia joined other court conservatives to order a stay of Mr. Obama’s Clean Power Plan, his grand design to transform the nation’s energy industry from fossil fuels to so-called “clean energy.” Important issues affecting separation of church and state and immigration are pending before the court.
Justice Scalia, a man of deep Christian faith, understood the inevitability of his departure from the Supreme Court to appear at last before the court from which there is no appeal. “I would not like to be replaced by someone who immediately sets about undoing what I’ve tried to do for 25 years,” he told an interviewer two years ago. That is precisely what Mr. Obama would do if the Senate confirms his choice. Short lists of prospective nominees with proper “diversity” credentials are already floating free from special-interest groups, and the list includes an Indian, a black and a woman. Demographics have replaced the law as the crucial consideration in the selection of judges in modern America.
The average period between a president’s nomination and a Senate vote is 67 days, and Mr. Obama will be with us as president for another 11 months. He can be expected to argue that the nation’s business can’t wait that long, and marshal pressure on the Senate to confirm his choice at once. The Republican senators can expect to be called all sorts of unpleasant names if they refuse to toe the mark.
Sen. McConnell vows that the choice of a successor to Justice Scalia, given the historic and long-reaching nature of the choice, should be that of the new president, whoever he or she may be. This is brave and defiant talk; unfortunately brave Republican talk often dissolves under pressure. Sen. McConnell must buck up the courage of his troops when they hear the sound of the guns. Everything is riding on it.