By Jeff Knox
Buckeye, AZ –-(Ammoland.com)- On Saturday, Feb. 13 2016, Supreme Court Justice Antonin Scalia died at a West Texas hunting resort, one month shy of his 80th birthday.
New York Times columnist Ross Douthat commented, “Politics aside, we should all die full of years, with 28 grandchildren, in our sleep after quail hunting.”
But politics was not really put aside for a moment. Justice Scalia led the “conservative” wing of the precariously balanced court, and his death immediately raises questions about succession. As I have often reported in recent months, the Supreme Court is, or should be, one of the central issues of the 2016 presidential election.
The untimely death of Justice Scalia has brought that fact home in a very tangible way.
The two sides of the court have been almost evenly split, with a slight edge to the “conservatives,” for over two decades. On the “liberal side, are Justices Ruth Bader Ginsburg (83), Stephen Breyer (77), Elana Kagan (56), and Sonia Sotomayor (62). On the “conservative” side are Chief Justice John Roberts (61), Samuel Alito (66), and Clarence Thomas (68). Holding the critical “swing” position is Justice Anthony Kennedy (79), who usually leans to the “conservative” side, but often swings to the “liberal” wing, particularly on “social” issues. With Scalia on the court, “conservatives” had an edge, not just in votes, but in intellect, philosophy and powers of persuasion. Scalia was smart, thorough, extremely knowledgeable, and he wielded significant influence over his fellow justices. No new justice, no matter how qualified, is going to have the respect Scalia had earned.
With almost a year left in his term as president, Barack Obama has the right to nominate someone to fill the vacancy on the court – with the advice and consent of the Senate. With a Republican-controlled Senate, that consent is not going to come easily, especially considering Barack Obama’s record when it comes to taking advice from Republicans.
Several prominent Republicans blundered with knee-jerk proclamations that any nomination from Obama would be “dead on arrival,” rather than simply stating that anyone Mr. Obama might pick for the position would be carefully considered, but that they would not allow a successor to Justice Scalia who did not embrace a similar judicial and constitutional philosophy. Declaring, sight unseen, that any nominee would be rejected, comes across as childish and petulant. The tough talk was red meat to the conservative base, but that base could have been reassured without politicians lowering themselves to ignorant declarations.
Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, has toned down the rhetoric some, but the seed has been planted, and the Democrats are merrily playing to the “obstructionist Republican” narrative.
Second Amendment At Stake
Those of us who focus on Second Amendment issues should understand what is at stake with the naming of a successor to Justice Scalia. Without Scalia’s presence, the Second Amendment has only two reliable votes on the court: Justice Thomas and Justice Alito. Though both Chief Justice Roberts and Justice Kennedy voted correctly on the Heller and McDonald cases, Roberts has signaled trepidation when it comes to broader Second Amendment cases, and Kennedy appears to have been reluctant to even go along with those two, narrow, landmark cases. Neither can be counted on to advance Second Amendment protections beyond a person’s front door, especially without Scalia to encourage them. That means that until the vacancy is filled, the situation stands at two reliable pro-rights votes against a solid bloc of four justices who would actively oppose any broader recognition of Second Amendment rights, and who, if given the opportunity, would almost certainly roll back the decisions in Heller and McDonald.
That’s not very comforting. Thankfully, there are few Second Amendment-related issues in the immediate Supreme Court schedule.
Pundits speculating about Obama’s possible picks place Sri Srinivasan, whom Obama appointed to the D.C. Circuit Court of Appeals in 2013, at the top of the list. Srinivasan emigrated from India as a child, is considered a “moderate” judge and is a personal friend of Ted Cruz, who supported his appointment to the D.C. Circuit. Srinivasan is considered a “consensus candidate” (by the media and Democrats) because of his “moderate” record and easy confirmation to the Circuit Court at a time when most confirmations were difficult – but to conservatives, “moderate” just isn’t going to cut it for replacing Scalia. The probable picks go downhill from there, with most lists ending with Loretta Lynch, Obama’s recently appointed attorney general. That pick would be a straight-up political brawl.
One name I have not seen on any of these lists, but which has been mentioned as a possible pick for Hillary, is that of Barack Obama himself. There is nothing in the Constitution to prevent a president from appointing himself to the Supreme Court. Of course, he would have to get Senate approval, and the idea of Joe Biden stepping up to the presidency, even for a very short time, would play in, but it’s not beyond possibility, especially if his first pick were to be stymied. Obama could appoint himself and make the presidential and Senate races all about him.
Obviously, anyone opposing his appointment would only be doing so because of racism, and if the Democrats could leverage the issue into a Senate majority in November, even if they didn’t win the presidency, Majority Leader Chuck Schumer could push the appointment through during the 17-day transition window in January, applying the “nuclear option” they had promised would only apply to lower court appointments. Sure it’s far-fetched, but I wouldn’t put anything past these people.
The bottom line is that the death of Justice Scalia draws into sharp focus that the fate of the U.S. Constitution and the republic, both riding on what happens this November. What are you going to do about it?
The Firearms Coalition is a loose-knit coalition of individual Second Amendment activists, clubs and civil rights organizations. Founded by Neal Knox in 1984, the organization provides support to grassroots activists in the form of education, analysis of current issues, and with a historical perspective of the gun rights movement. The Firearms Coalition is a project of Neal Knox Associates, Manassas, VA. Visit: www.FirearmsCoalition.org