The Scalia Seat: Let the People Speak

Posted: Mar 7, 2016

Republicans and Democrats are deeply divided over the proper role of the Supreme Court. President Obama and Democrats favor justices who see the Constitution as a potter sees clay—something that can be molded to achieve their desired results. This has led the Supreme Court to invent rights that are nowhere in the Constitution—like the right to an abortion or to same-sex marriage—and ignore or restrict rights that even nonlawyers can’t miss—like the First and Second Amendments. Republicans view things very differently. We believe the Constitution has a fixed meaning and a judge’s task is limited—to discover what that meaning is, not to make it up. Justice Antonin Scalia, whose passing we mourn, was a passionate champion of this humbler view of the judicial role. It is nearly impossible to overstate the significance of his passing. If Justice Scalia is replaced by a Democratic nominee, many long-cherished rights will be jeopardized. The court would be poised to allow the banning of movies and books criticizing political candidates like Hillary Clinton, to mandate that states permit the barbaric monstrosity known as partial-birth abortion, to force the religiously devout to provide abortion-inducing drugs, and to allow the confiscation of guns by holding that the Second Amendment doesn’t include an individual right to keep and bear arms. In 2014 when the American people last spoke in a nationwide election, they clearly repudiated Democratic governance and elected a Republican Senate majority. Although the president has the constitutional power to nominate Justice Scalia’s replacement, no nominee can be appointed without the Senate’s “Advice and Consent.” And as Minority Leader Harry Reid himself once said, “nowhere” in the Constitution “does it say the Senate has a duty to give presidential nominees a vote.” I believe the Senate should fulfill its constitutional duty by letting the American people be heard in selecting the next Supreme Court justice. Seldom has a Supreme Court vacancy arisen before the election in a presidential election year. Benjamin Cardozo, whom the Senate confirmed in February 1932, was the last justice confirmed to fill such a vacancy before the election. That was more than 80 years ago, and it occurred when the same party controlled both the Senate and presidency. Rarer still has a vacancy arisen in the lame-duck final year of a presidency when the opposing party controlled the Senate. One must look back to 1888 to find a situation remotely similar to the one we face today where a Senate confirmed the nominee of a president from the opposing party before the election to fill a vacancy that arose in a presidential election year. But even this lone example is not a suitable precedent. Unlike President Obama now, President Grover Cleveland was eligible for re-election and could have been held accountable for his choice of nominee. The 1888 example is also an outlier because on every other occasion when a vacancy arose before the vote in a presidential-election year and the Senate and presidency were not controlled by the same party—1828, 1844, 1852 and 1956—the Senate didn’t confirm a nominee before the election. Most important, the deep disagreement that divides the political parties today over constitutional interpretation didn’t exist in the 19th century. This rift emerged in the early 20th century as American progressives began to question the Constitution’s merits. Woodrow Wilson—a Democrat and progressive leader—was the first president to have openly declared that the Constitution, with its separation of powers, was outdated. And Democrats have been subverting the Constitution ever since. To overcome what he perceived to be the Constitution’s defects, President Wilson invoked the idea of a living constitution, which changes as society changes. “Government,” Wilson said, “is not a machine, but a living thing” and “is accountable to Darwin, not to Newton.” That view has remained a foundational principle of the Democratic Party. In “The Audacity of Hope,” then-Sen. Obama wrote that the Constitution “is not a static but rather a living document, and must be read in the context of an ever-changing world.” The extreme positions that the Obama administration has taken in the Supreme Court—for example, its argument in Hosanna-Tabor that the government can interfere with a church’s choice of ministers—are further evidence of President Obama’s devotion to living-constitutionalism. The president’s appointments to the Supreme Court have proven just as devoted. After all, justices Sonia Sotomayor and Elena Kagan voted to invent a right to same-sex marriage. Does anyone really believe that another Obama nominee would be different? The stakes are too high to allow President Obama, in the waning months of his final term, to make a lifetime appointment that would reshape the Supreme Court for a generation. Do the American people want a justice who adheres to the unchanging text, history and structure of the Constitution, or do they want a justice who thinks the Constitution should evolve with the personal beliefs of unelected lawyers? Voters deserve the opportunity to speak on this subject through the next president. That is why I will oppose any attempt by the Democrats to deny the American people their say. There should be no hearing on any nomination that President Obama makes, and if any confirmation vote is attempted, I will filibuster it. Notably, this approach was advocated by Vice President Joe Biden when he chaired the Senate Judiciary Committee in 1992, and as recently as 2007 by the man now slated to be the next Democratic leader in the Senate, Chuck Schumer. I strongly support Senate Majority Leader Mitch McConnell, Senate Judiciary Committee Chairman Chuck Grassley and my fellow Republicans on the Judiciary Committee, who have drawn a line in the sand on behalf of the American people: We will not consider any Supreme Court nominee until the people have spoken and a new president is inaugurated. Mr. Cruz, a U.S. senator from Texas, is a member of the Senate Judiciary Committee. ;