The Republicans are already backing off a bit or more from their hastily conceived policy of obstruction. There are loads of precedents for the obstruction, engaged in by both parties. Democratic whining about its deployment against President Obama’s nominee is as cheeky as it is hypocritical. Still, the higher road—the electorally more effective road, too—is perfect respect for constitutional forms. The Republicans who control the Senate should take the lesser risk of respectfully accepting the President’s nomination, holding hearings, and then rejecting him or her for good, constitutional reasons.
Granted, there would be a risk of some Republican senator or senators voting in favor of an allegedly moderate presidential choice, but that act of craven stupidity would be punished by the electorate in November. As I will explain, there is no way any renegade Senator could honestly argue that the Obama nominee was moderate enough.
Some say, in the mode of the Tea Party, the Freedom Caucus, and Senator Cruz, that just holding hearings would be caving in to Obama. It would be more like caving in to the Constitution. The President is still the President, and the constitutional form is still that he chooses a nominee and the Senate deliberates on his confirmation. The Republican senators should be constitutionalists, respect our separation-of-powers system, and use the constitutional means they’ve been given to defend the Constitution against a nominee who doesn’t sufficiently respect it.
During deliberations, Republicans can stand on this ground: that Justice Scalia was right when he complained that the Supreme Court has been so recklessly politicized these days that nobody can honestly claim there are nonpartisan criteria for fitness for the bench that can be totally abstracted from the nominee’s judicial doctrine. This legitimates senators’ objecting to a nominee who isn’t an “originalist” and guided primarily by respect for what the Constitution actually says. For many of the more assertive originalists, originalism in the sense of Randy Barnett is in deep tension with textualism in the sense of Scalia. But that’s a distinction best slighted during an election year, when all those against various modes of interpretation based on the “living” or Progressive Constitution need to hang together.
An acceptable nominee’s originalism or textualism, I note, would not have to be so hardline that he or she considers most New Deal legislation unconstitutional and reigning precedents be damned, in the mode, say, of Richard Epstein. Even Scalia was not that hardline. It would be electoral death for Republicans to take on our existing system of entitlements anyway. People might be brought a certain distance toward reform by Governor Christie’s courageously truthful argument that, to be sustainable, Social Security and Medicare need to be trimmed. But if they still basically approach these things in the way William Voegeli has said, as a choice between the Constitution and Social Security, their inclination to choose the latter remains strong.
The definition of acceptable should probably be: opposition to the innovative version of the Living Constitution promulgated by Justice Kennedy in Lawrence v. Texas (2003). According to Kennedy’s memorable majority opinion, our Framers deliberately kept the meaning of “liberty” in the Due Process Clause open. They knew their understanding of the word was partially blinded by the prejudices of their time. And so they meant liberty to be a fighting word for each generation of Americans, as laws once thought to be necessary and proper are now seen to be arbitrarily oppressive. The history of liberty in America is in the direction of greater or more consistent individualism, and it’s the job of the Court to determine the meaning of liberty at any particular time. That means, for example, that same-sex marriage has not always been a constitutional right, but it is one now, whatever our Framers of the Constitution of 1787 or the Fourteenth Amendment may have thought about laws concerning marriage.
Kennedy’s latter-day Living Constitutionalism, of course, provoked Scalia more than the first form, that is, the one associated with judicial deference to Congress on the question of the constitutionality of the New Deal and subsequent innovations in the service of big government—although he was a determined defender of property rights, defendants’ rights, gun-owners’ rights, and in fact any rights actually mentioned in the text of the Constitution.
It’s true enough that some of the more libertarian originalists agree with Kennedy’s opinions in Lawrence and in Obergefell v. Hodges (2015) (although, when it comes to the latter, they could do without all the relational, lovey-dovey baggage). But for Republicans, the litmus test has to include opposition to Roe v. Wade (1973) and Obergefell. Certainly that’s the view of any Republican candidate with a significant chance of getting the nomination, with the possible exception of Trump. And if Trump gets the nomination, there’s no longer a Republican Party in any principled sense.
The President, for his part, won’t be nominating a candidate who’s not obviously in favor of Roe and Obergefell. Part of his strategy will be to mobilize the pro-choice, identity-politics factions, making it clear that the future of their causes is at stake with the outcome of the election. Obama thinks the defense of judicial activism when it comes to marriage and abortion is part of the Democratic recipe for victory, and he might be right. But the Republicans have no choice but to be true to themselves by mobilizing the socially conservative factions who thought of Scalia as their defender.
Now Scalia, with a meticulous eloquence, always made it clear that his key opinions had nothing to do with his policy preferences. He didn’t present himself as for or against the death penalty, for or against laws restricting abortion, or for or against same-sex marriage. He just thought the Constitution didn’t give the Court the authority to override democratic deliberation through legislatures. He was pro-choice in the sense of defending the people’s right to choose. He was, as George Will recently wrote, part of the first generation of originalists, who thought of themselves as being for judicial restraint concerning the fundamental political conflicts of their time. For the younger generation of more aggressively libertarian originalists, Will added, the Court is the supervisor of democracy, with the rights articulated in the Declaration of Independence in mind.
Surely it is the pro-majoritarian dimension of originalism that should be mostly highlighted in an election year, especially when the majorities being defended are conservative or Republican ones. Liberals, as we know, disbelieved Scalia’s judicial proclamation of neutrality on contentious social issues. They assumed his constitutional opinions flowed from his social conservatism, and many conservatives assumed the same. Scalia was a very conservative Catholic, and he never interpreted the Constitution to be in conflict with his religious beliefs. Even so, given the above-mentioned problem that originalists are divided over Roe and Obergefell, Scalia’s form of originalism needs to be defended for what it genuinely is: a nonpartisan standard for evaluating the fitness of nominees to serve on the Supreme Court.
At the same time, originalism is not coextensive with majoritarianism and must at a certain point be distinguished from it. Consider the difference between the reactions of Marco Rubio and Ted Cruz to Scalia’s death. Rubio was all about hostility to same-sex marriage and even getting Obergefell reversed. Look, even replacing Scalia with a Scalia clone would not achieve that result. The 5 to 4 Obergefell majority would remain intact. Nor are too many people counting on even a Republican victory across the board producing a reversal of that decision. There’s more hope, in fact, for a reversal of Roe, but with the sober realization that the struggle will be long and the outcome uncertain.
Cruz was astute to call attention instead to an issue where the loss of Scalia posed an immediate danger: If the seating of a new justice on the High Court were not staved off until the next President—a next Republican President, that is—the Heller decision affirming the individual’s Second Amendment rights would be reversed. This would leave our exercise of our right to bear arms at the mercy of Democratic legislatures and executives. To be sure, that right doesn’t animate the majority of voters much one way or the other. But for those who cast a ballot with the Second Amendment primarily in mind, the advantage is with the Republicans. And gun-owners’ rights is an issue that happens to unite the more libertarian originalists with, thanks to Scalia, the more socially conservative ones.
Does this mean everyone should go out and vote for Cruz? I’ve noticed that some rather consistently libertarian originalists are for him. Their thinking may well be that on the “social issues,” abortion and same-sex marriage, there is little danger of rollback; that the Left-leaning justices will be there to ensure that the judicial status quo on those will be maintained. Justice Kennedy is correct, after all, that our history on that front has been pretty much in one direction.
But not so when it comes to property rights and related economic issues. There, the hope of some of our libertarian originalists is that the Court will become more consistent—affirming “the presumption of liberty” across the board. And indeed the candidate who seems to consider the whole welfare state unconstitutional is Cruz. His plans for tax and healthcare reform promote economic growth and individual liberty, and are notably free of any hint of acceptance of New Deal thinking. Cruz promises the kind of rollback they have in mind and really think is possible.
So I’m not for Cruz! He’s the candidate for the rollback of both Roe and the New Deal on constitutional grounds. That combination would be death in November. Others think the Republican path to victory is emphasizing economic liberty and downplaying the “social issues.” The rise of Trump and Bernie Sanders, the crash of Rand Paul, and the general rebellion against the perception of oligarchic irresponsibility all suggest otherwise.
Wait, you say, Trump’s no social conservative—what about those “New York values” when it comes to abortion, same-sex marriage, and related cultural issues? Then, too, don’t Christians notice, on the character front, that this is one sinner who happens to think of himself as in no need of forgiveness?
Well, but consider that Scalia’s main concern in his passionate dissent in Obergefell is the future of religious freedom. Trump has promised to make America respect the authority of our churches. His promise, in effect, is to be such a strong leader that observant Christians, Jews, and others will not have to rely on our weak and vacillating courts to protect them. Remember, too, that Trump’s unwavering and increasingly ungentlemanly opposition to political correctness is meant to protect decent, patriotic, and pious ordinary Americans from having their lives scripted by a corporate/bureaucratic cognitive elite. Trump never tires of reminding us that “a country is a country,” meaning he doesn’t regard citizenship as just another form of rent-seeking to be overcome by the dynamism of the global competitive marketplace. On economics above all Trump is a moderately liberal Democrat. He’s a Republican only in defending the social conservatism of ordinary Americans against the condescension of cosmopolitan elitism.
But, of course, I’m not for Trump, who has no respect for or knowledge of constitutional forms and the rights all human beings share. I’m for the candidate who’s closest to the constitutional wisdom of Mr. Justice Scalia. That candidate promises the best chance for the next President to choose Scalia’s replacement.