On Antonin Scalia And 'Advice And Consent'

How many degrees of dumb is the argument against Barack Obama replacing Antonin Scalia on the Supreme Court? How high can you count?

Until his death earlier this month, Antonin Scalia’s presence on the U.S. Supreme Court tilted the bench 5-4 in favor of conservatism. Now that he’s gone, the battle to control his Court seat has just started — and conservatives are ready to bypass the Constitution if that’s what it takes to control the future of our nation.

Senate Majority Leader Mitch McConnell tweeted following Scalia's death, "Through the sheer force of his intellect and his legendary wit, this giant of American jurisprudence almost singlehandedly revived an approach to constitutional interpretation that prioritized the text and original meaning‎ of the Constitution." McConnell is alluding here to a loose thread of Scalia’s legacy. Beyond the cases currently pending in the Supreme Court, what Scalia leaves behind is the fate of originalism — a legal philosophy that considers the Constitution, the Federalist Papers, and the personal papers of the men who wrote the Constitution to be the first and last word on the proper course of modern legal action. (In other words, though he was appointed to the Court in 1986 and served until 2016, Antonin Scalia partied like it was 1789.)

Now some of our nation's most powerful Republicans are primed to begin an unprecedented battle to hold our country to those good old-fashioned 18th-century values — actual constitutionality be damned, of course.

Why all this fuss over originalism? Well, to take just one example of how Scalia’s theory might have altered the course of history, look at the landmark 1954 Supreme Court case Brown v. Board of Education, which was responsible for the legal end of segregation.

At the time, the plaintiff's lawyer, Thurgood Marshall, argued that segregation denied black Americans the right to equality promised by the 14th Amendment — but for originalists, applications of modern morality to the Constitution are irrelevant. The only thing that counts for believers like Scalia is the historical context of the Constitution’s creation, and even the most casual student of American history could tell you that a bunch of white guys in 1868 didn’t expect white children and black children to be educated together.

By originalist logic, then, the outcome of Brown v. Board of Education might have been moral, but it wasn’t constitutional. Yet when he was asked about Brown, Scalia claimed he would have voted against segregation, and he shrugged off questions of how he would have justified his vote based on his own philosophy.

This kind of moral evasion and hypocrisy is at the heart of the conservative embrace of originalism, and it’s the same bullshit that today’s Republicans are trying to pull in their attempt to block Obama’s power of appointment. Conservatives claim they’re protecting the Constitution, but there’s no precedent for a president to abstain from attempting to appoint a Court justice for nearly an entire calendar year. What these guys really want is for the Constitution to act as a curtain they can hide behind whenever they want to usher in policies that protect their white, male, and moneyed constituency.

But because originalists tend to only acknowledge their own dogma, watch what happens when we counter originalism with originalism. Look at the area of the Constitution that accounts for the appointment of Supreme Court justices — Article II, Section II, Paragraph II, sometimes referred to simply as "Advice and Consent."

The passage in question reads, "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

In short, what Advice and Consent protects is necessary compromise and dialogue between the President and the Senate during the process of appointment. If McConnell and his fellow Republicans in the Senate reject an individual Obama nominee, they could correctly cite the Senate’s right to consent as a constitutional provision. But to categorically refuse any presidential nominee is negligence of their constitutional duty to advise.

It might come as a shock to our current gridlocked and ideologically inflexible Congress, but if they’d paid attention in civics class, they’d know the Founding Fathers didn’t intend to create a stagnant political system. Scalia’s beloved Framers understood that a unified nation could only be created and sustained through compromise. To refuse to even entertain discussion over a single Supreme Court seat is an abdication of the responsibility to govern, at least insofar as the nature of government would have been understood by our Founding Fathers. As it regards this originalist issue, those who claim the title of conservative would be better off calling themselves radicals. For the rest of us, hypocrite will do.