With the death of Supreme Court Justice Antonin Scalia, the Senate of the United States faces a tough question. Do they allow President Obama to choose a third Justice, or do they hold off and let the next President make the appointment. Yesterday I was asked during a radio interview what I thought the Senate should do. My response was immediate, they should wait. For me, the issue was the balance of power. I’ve always said that each branch of government was given certain powers and should jealously guard those powers for the sake of the nation. The framers of the Constitution never meant for governing to be easy, actually quite the contrary. They split the power up among three branches, and in the case of the legislative branch, they went even further and split that power between two separate autonomous houses. This devaluation of power keeps government from moving too quickly and prevents wild swings in policy. It’s arduous by design.
When it comes to the question of appointing federal judges, the President makes the nomination and the Senate either confirms or denies the appointment. The power is split between the two branches and, properly exercised, is held in tension between the two. What hangs in the balance with this appointment is nothing less than the ideological control of the U.S Supreme Court possibly for an entire generation.
At present we’re a nation split down the middle as evidenced by the narrow margins in recent presidential elections, the narrow margins in the U.S House and Senate, and the balance of power on the U.S Supreme Court which until last week had four consistently liberal votes, four consistently conservative votes, and one swing. To allow President Obama to appoint another Justice is to allow the court to swing hard left for the foreseeable future. Voters knew this therefor control of the U.S Senate and by extension the Supreme Court became a rallying cry during the last election cycle. Republicans won providing a check to the President’s ability to change the court as long as they’re willing to stand fast and exercise the power granted them under the Constitution. This is exactly what those who put them in the majority expect and it’s what liberals will label as obstructionist and a usurpation of power.
So why is this appointment process so contentious? I believe for two reasons; the first is the concept of judicial supremacy, the false idea that the Supreme Court has the final say on all matters. In effect it makes them more powerful than the legislative branch because policy drives practice and when it comes to things like marriage, religious freedom, and healthcare, the court is turning the country hard to the left. The second is the concept of a living constitution one that changes with the times and a concept that Justice Scalia railed against. In his opinion, the Constitution should only be changed through the amendment process imbedded in the document itself. The court now routinely in effect, amends the Constitution by judicial decree. If these two practices are allowed to continue, then as Abraham Lincoln said, “We the people will cease to be our own rulers having practically resigned our government into the hand of the Supreme Court.” This fight for control of the Supreme Court is in a very real sense a fight for control of the Country, and I for one hope the conservatives in the U.S Senate stand strong in the defense of our nation.
