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.

More in Opinion

This image available under the Creative Commons license shows the outline of the state of Alaska filled with the pattern of the state flag.
Opinion: Old models of development are not sustainable for Alaska

Sustainability means investing in keeping Alaska as healthy as possible.

Gov. Mike Dunleavy unveils proposals to offer public school teachers annual retention bonuses and enact policies restricting discussion of sex and gender in education during a news conference in Anchorage. (Screenshot)
Opinion: As a father and a grandfather, I believe the governor’s proposed laws are anti-family

Now, the discrimination sword is pointing to our gay and transgender friends and families.

Kenai Peninsula Education Association President Nathan Erfurth works in his office on Thursday, Oct. 28, 2021, in Soldotna, Alaska. (Ashlyn O’Hara/Peninsula Clarion)
Voices of the Peninsula: Now is the time to invest in Kenai Peninsula students

Parents, educators and community members addressed the potential budget cuts with a clear message.

Gov. Mike Dunleavy holds a press conference at the Capitol on Tuesday, April 9, 2019. (Juneau Empire file photo)
Opinion: An accurate portrayal of parental rights isn’t controversial

Affirming and defining parental rights is a matter of respect for the relationship between parent and child

Opinion: When the state values bigotry over the lives of queer kids

It has been a long, difficult week for queer and trans Alaskans like me.

Dr. Sarah Spencer. (Photo by Maureen Todd and courtesy of Dr. Sarah Spencer)
Voices of the Peninsula: Let’s bring opioid addiction treatment to the Alaskans who need it most

This incredibly effective and safe medication has the potential to dramatically increase access to treatment

Unsplash / Louis Velazquez
Opinion: Fish, family and freedom… from Big Oil

“Ultimate investment in the status quo” is not what I voted for.

An orphaned moose calf reared by the author is seen in 1970. (Stephen F. Stringham/courtesy photo)
Voices of the Peninsula: Maximizing moose productivity on the Kenai Peninsula

Maximum isn’t necessarily optimum, as cattle ranchers learned long ago.

(Ben Hohenstatt / Juneau Empire File)
Opinion: The time has come to stop Eastman’s willful and wanton damage

God in the Bible makes it clear that we are to care for the vulnerable among us.

Caribou graze on the greening tundra of the Arctic National Wildlife Refuge in northeast Alaska in June, 2001. (Michael Penn / Juneau Empire File)
Opinion: AIDEA’s $20 million-and-growing investment looks like a bad bet

Not producing in ANWR could probably generate a lot of money for Alaska.

A fisher holds a reel on the Kenai River near Soldotna on June 30, 2021. (Photo by Ashlyn O’Hara/Peninsula Clarion)
Voices of the Peninsula: King salmon closures long overdue

Returns have progressively gone downhill since the early run was closed in June 2012

(Clarise Larson / Juneau Empire File)
Opinion: Fixing legislative salaries and per diem

The state Senate was right to unanimously reject giving a 20% pay… Continue reading