By Craig Andresen Right Side Patriots http://www.americanpbn.com/
Suddenly, with the death of Justice Scalia, the appointment of a ninth Justice to the Supreme Court has taken on more weight than most would have previously believed necessary in this, an election year.
Just as weighty as the decision as to who should nominate our next Supreme Court Justice is how any nominee will view Constitutional theory or how that person will interpret the Constitution.
Along those lines, there are five basic theories of Constitutional interpretation. Generally, those theories are as follows: (1) the text and structure of the Constitution, (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in question, (3) prior precedents (usually judicial), (4) the social, political, and economic consequences of alternative interpretations, and (5) natural law. There is general agreement that the first three of these sources are appropriate guides to interpretation, but considerable disagreement as to the relative weight that should be given to the three sources when they point in different directions. Many interpreters of the Constitution have suggested that the consequences of alternative interpretations are never relevant, even when all other considerations are evenly balanced. Natural law (higher law, God’s law) is now only infrequently suggested as an interpretive guide, even though many of the framers of the Constitution recognized its appropriateness. Persons who favor heavy reliance on originalist sources (text and intentions) are commonly called “originalists.” Persons who favor giving a more substantial weighting to precedent, consequences, or natural law are called “non-originalists.” In practice, disagreement between originalists and non-originalists often concerns whether to apply heightened judicial scrutiny to certain “fundamental rights” that are not explicitly protected in the text of the Constitution.
Natural law has never been a highly recommended theory by which to interpret the Constitution as the Founders and Framers, while guided in their personal lives by their religious views, and many were Deists, wrote, as our 1st Amendment, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” and, as the Supreme Court’s function is to adjudicate the law, based upon constitutionality, using natural law as their guide would be, in fact, unconstitutional.
What this basically leave us with are two general forms of constitutional theory…Originalist and non-Originalist.
Scalia was an Originalist…a jurist who interpreted the Constitution as though it were a binding contract…the supreme law of the land.
This will never be the sort of constitutional theorist that Obama, nor any liberal or liberal/socialist would nominate to the Supreme Court. Liberals and liberalism would soon be out of power altogether should the High Court become populated with Originalists. What liberals and liberal/socialists want…what they must have to maintain power of the government over the people rather than allowing the people to hold sway over the government…are non-Originalist judges.
Non-Originalist judges, on any bench, interpret the Constitution as though it were a living, breathing, malleable document. Basically, non-Originalist Justices see the Constitution as little more than a suggestion and something completely out of touch with society. The non-Originalist judges firmly believe that they, rather than elected officials, have the ultimate say in the laws of governance and they often legislate from the bench if a law, passed by officials elected by the people, doesn’t match their personal ideology or political agenda.
This is why this 2016 presidential election is now even more important…Obama will, in what he calls “due time,” nominate a non-Originalist to serve a lifetime appointment to the Supreme Court and he will, no doubt, attempt to place someone young enough to serve at least 40 years thus altering the scope of constitutional interpretation for at least a generation.
While Ted Cruz and Marco Rubio have called for the senate not to confirm anyone and let the next president make the appointment, and Mitch McConnell, the senate majority leader has stated he will guide the senate in that very direction, we must be aware that any liberal/socialist who might win in November will do exactly what Obama will try to do now.
If we want the Constitution to remain intact, as well as the Bill of Rights, we must defeat any liberal/socialist in this election but it also becomes incumbent upon us to choose more wisely than ever before, our nominee.
As Obama is most likely to nominate any one of three or four non-originalists to the Supreme Court…either Sri Srinivasan, believed by liberals to be a moderate…Paul Watford who clerked for Ginsburg… Loretta Lynch or Eric Holder. Of these, Srinivasan is the youngest and like Holder and Lynch, a minority which the racist Obama will attempt to use against any attempt to stall a nomination. Lynch is the most recently confirmed by the senate, as AG, and that is something Obama and his liberal cohort, Harry Reid will attempt to use should she be his pick.
No doubt, in an election year, Obama will play either the race card, the sexism card or, in the case of Lynch…both…which makes her the odds on liberal, activist, non-Originalist choice.
Neither Hillary nor Sanders, should either win in November, have any different litmus test other than finding the most liberal, activist judge that will legislate from the bench to serve as Scalia’s replacement.
In what is now a three man race on the Republican side, we must examine each of those three candidate’s thought processes regarding possible Supreme Court nominees.
Marco Rubio would likely nominate an Originalist to the open post as Rubio himself is a Conservative. Look for Rubio to choose a nominee who has strong Constitutional and Conservative leanings should he prevail to the nomination and in November.
Ted Cruz has argued many cases before the Supreme Court during his days as the Solicitor General from Texas and he, like Scalia, is an Originalist in Constitutional theory. There can be no doubt that Cruz, should he win the nomination and the general election, would nominate someone as close to the Scalia mold as can be found.
And remember, it was Cruz and Rubio who tried to block the confirmation of Loretta Lynch to the AG position and drew scorn from their fellow senate Republicans for doing so.
That leaves us with Donald Trump.
Trump has indicated recently that he believe his sister, Judge Diane Sykes…who struck down a New Jersey ban on late term abortion...”would make an incredible Supreme Court Justice.” Other than that, we have little to go on regarding Trump and possible Supreme Court nominations but we do know this much…Trump has been very critical of Scalia in the past and obviously doesn’t like Roberts at all. Trump, who until recently, has been a liberal, with left or far left ideological leanings most of his life or an Independent, with no core political ideology whatsoever, is more likely to nominate Supreme Court Justices who, like he does, lean to the left and will not be Originalists in their interpretation of the Constitution.
What the very future of our Constitutional Republic demands, are Originalists on the Supreme Court and the next president will not only, most likely, be nominating a replacement for Justice Scaila, but at least two more Supreme Court Justices as well. Ruth Bader Ginsburg is old and frail and now, having lost her personal friend Scailia, may well retire before she passes away. Also on the list of possible Supreme Court retirees are Stephen Breyer who, like Ginsburg, is a non-Originalist…and what about Justice Kennedy? Might he retire any time soon?
Yes, it is a possibility but he has stated he will not do so until Obama is out of office and while Kennedy is often thought to be the swing vote, sometimes siding with the Conservative Originalists Scalia and Thomas, he does sometimes lean to the left side of the court as well. Should a Republican, and especially a Conservative like Cruz or Rubio win in November, I believe Kennedy will step down so as to be replaced by a Conservative Justice and one who leans more toward the Originalist interpretative theory.
If the Constitutional Republic is to survive, the Supreme Court must be in the hands of Originalists. Any liberal/socialist elected to the presidency will, undoubtedly, assault the Constitution from the Oval Office as Obama has and will appoint Justices who will assault it from the highest court in the land.
Originalists believe that our Constitution and the Bill of Rights are the very bedrock of our Republic and should be regarded as such when interpreting the law from the Supreme Court while activist, liberal Justices view the Constitution as a living, breathing suggestion and nothing more…as documents that have outlived their purpose and are subject to the whims and agendas of political agenda and societal fluctuations.
It will require a president, our next president, to make nominations and appointments to the Supreme Court that will ensure a strict adherence to the written words in the Constitution in order to keep the Republic intact which makes our choice, leading into the bulk of the primaries, even more important now than ever before.
It is no longer enough to simply want to stick ones thumb in the eye of the establishment, be that establishment the GOP, Washington itself or both. If we, as Republicans and Conservatives fail to choose wisely, our failure will long outlive a term or two of a presidency…it will have dire reverberations for generations to come.
We must nominate for president, a man with strong Conservative core values who has a record and a history to prove them who will, in turn, nominate Justices…Originalists…who share those core Conservative values to the United States Supreme Court. Donald Trump is not that man…either Ted Cruz or Marco Rubio are because our greatest domestic threat now becomes that open seat.
We must make our choice wisely as the future of the Republic not only depends upon it…but demands it.