Op-ed: Scalia and that pesky Constitution

  • By Bob Franken
  • Tuesday, February 16, 2016 5:33pm
  • Opinion

This shouldn’t be necessary, but apparently Republicans need a little constitutional review. So for Mitch McConnell and the rest of the partisans, let’s turn to Article 2, Section 2, which is about the responsibilities of the president. Can all of us see it there, the part that reads “he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States”?

Does everyone notice it says “shall,” that it’s not optional? I ask because the GOP consensus is that he should hold off naming a replacement for Justice Antonin Scalia, because President Barack Obama is in the final year of his term. Apparently they’ve overlooked the part where Article 2 states “He shall hold his office during the term of four years”? Perhaps they didn’t realize that “lame duck” doesn’t appear in the Constitution.

But then, so many on the right have simply refused to accept the legitimacy of Mr. Obama as chief executive from the get-go, even though he’s been elected to two of these four-year terms — not three-year. After all, they fantasize, he’s not even eligible to serve, since he was born somewhere else, no matter what the overwhelming evidence shows, that demeaning need to come up with proof shouldn’t have been necessary, except, you know, he’s, uh, different. They don’t need to say how he’s different; everyone knows what they mean.

Maybe that’s why they’ve taken the words “advice and consent” and twisted them into “divide and dissent.” Because they can.

Sen. McConnell is correct that appointing a Supreme Court justice is perhaps the most significant legacy a president can leave behind. That’s because the Supremes are there for life. Scalia had been on the SCOTUS bench since 1986, and in the “thoughts and prayers” platitudes surrounding his sudden death at 79, he is being remembered as a sharply intellectual, ferocious conservative voice. He was actually an ultra-right winger, but it is bad form to say so right now — except on the Internet, where nothing is bad form.

Obama could undo Scalia’s hold on the law and tilt the highest court in the opposite direction with his nomination. Those on the right are appalled at the very idea. It could change everything. Well, if not everything, it could reverse decades of a starboard course for affirmative action, divorce, gun control, labor rights, campaign finance, etc., replacing Scalia’s barbed regressiveness with a progressive agenda.

So no wonder the GOPs will pull out all stops to prevent that from happening on President Obama’s watch, in the hope that the election will put a Republican in the White House and maintain their control of the Senate. Both of those are mighty iffy right now, but in the words of their leading political philosopher Donald Trump, “Delay, delay, delay!”

That was the wisdom the Trumpster trumpeted in the latest GOP debate in South Carolina, which is where the next Republican primary is scheduled and where a significant part of the electorate still begrudges the Supreme Court decisions a generation ago that overturned Jim Crow laws.

Ted Cruz, of course, misrepresented facts when he claimed that “We have 80 years of precedent of not confirming Supreme Court justices in an election year.” Actually, it’s been 28 years. Anthony Kennedy was seated in February 1988. One could be charitable and decide that Cruz had made a mistake, but one also could remember that Cruz was a clerk for Chief Justice William Rehnquist. Marco Rubio said approximately the same thing, but at least he didn’t repeat it over and over.

President Obama says that he’s going to, in fact, fulfill his responsibility and nominate a Scalia replacement in “due course.” The Republicans insist they’ll block him or her. Did we need more proof that the high court is really low politics in robes?

Bob Franken is a longtime broadcast journalist, including 20 years at CNN.

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