I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States.
When Hillary Clinton nominates a Supreme Court Justice to replace Antonin Scalia (assuming Merrick Garland is not confirmed before Clinton takes office), that nominee will testify before the Senate Judiciary Committee that he or she will uphold the Constitution impartially and decide cases based on the law, not his or her policy preferences or the status of the litigants. That nominee will be lying.
This is clear from what Clinton said last night about the Supreme Court and the kind of Justice she will nominate. Here is how Clinton answered Chris Wallace's opening question regarding her view of how the Constitution should be interpreted:
You know, I think when we talk about the Supreme Court, it really raises the central issue in this election, namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have?
And I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy. For me, that means that we need a Supreme Court that will stand up on behalf of women's rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.
Clinton never mentioned the Constitution. She never so much as nodded at it.
Clinton's answer shows that she thinks interpreting the Constitution means "standing up on behalf of women's rights" and "on behalf of the rights of the LGBT community." It also means ignoring the rights of "powerful corporations and the wealthy."
In other words, cases should be decided based (at least in part, though Clinton never qualified her answer this way) on the gender, sexual preference, or wealth of the litigants, not on what the Constitution or applicable statute provides. The Constitution, in her view, is not a set of rules that applies equally to everyone, but rather a means of favoring members of groups that appeal to Hillary Clinton.
Here, though, is the oath taken by Supreme Court Justices:
I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States.
(Emphasis added).
Hillary Clinton has effectively promised to nominate Justices who will not uphold that oath.
For Republicans, and anyone else who believes in the Constitution and the rule of law, such Justices are not acceptable and cannot be confirmed. When a Clinton nominee testifies that he or she will uphold the oath, Senators ought not believe the testimony. God knows, Clinton has her flaws but they do not include an inability (with the help of her apparatchiks) to identify lawyers and judges who will uphold her anti-constitutional vision of the Supreme Court.
However the Senate races turn out, Republicans will have the votes to block Clinton Supreme Court nominees under the current rules. Unfortunately, if the Democrats control the Senate, they will change the rules as necessary to confirm Clinton's nominees. In any case, I can't imagine Republicans holding firm enough to block Clinton's nominees indefinitely.
So when Clinton appointed Justices cast decisive votes, conservatives must denounce the decisions not just as wrongly decided, but as illegitimate. We should "accept" the decisions in the sense of abiding by the results, but we should not accept them as legitimate interpretations of the Constitution or the applicable statute.
So should the GOP-controlled Senate confirm Garland ASAP? Or should they wait for Clinton to appoint a Sotomayor-like justice and have the nomination go before a Dem-controlled Senate?
Is there any practical reason, at this point, for the GOP to stand by it's "No Hearing" stance?
One thing I would do if I were a Republican senator is write to Garland, quote the question last night to Ms. Clinton and her answer, and then ask him to state whether he agrees with that answer, its implications about judicial neutrality and independence, and why or why not.
I would consider what course is wisest after I see his answer to that question. And an answer is what I would want, not a bunch of generalities that leave eight zillion miles of wiggle room.
As the PowerLine entry notes, a dysfunctional Supreme Court is better than a bad one -- i.e., one that turns its back on the Constitution and flushes the legacy of Justice Antonin Scalia. Even under Harry Reid's gun-to-your-head rules, Supreme Court nominees can be filibustered.
As prosecutors know as well as anyone, the Supreme Court has tremendous and lasting importance. People on the Scalia side -- of whom I am one, personally and professionally -- are not going to throw in the towel on what he stood for.
If the Senate has a hearing now on Garland they can and should ask him that question in public for all to see and he will have to answer in real time. Wouldn't that be the best way to have this question asked and answered?
And, of course, a hearing would also allow questions of Garland to see if he is on "the Scalia side" concerning the future jurisprudence in major recent pro-defendant Scalia rulings like Blakely and Crawford and Heller and Johnson (just to name a few of my favorites).
If the Senate has a hearing now on Garland they can and should ask him that question in public for all to see and he will have to answer in real time. Wouldn't that be the best way to have this question asked and answered?
And, of course, a hearing would also allow questions of Garland to see if he is on "the Scalia side" concerning the future jurisprudence in major recent pro-defendant Scalia rulings like Blakely and Crawford and Heller and Johnson (just to name a few of my favorites).
1. If Garland ever has a hearing, I hope he'll be asked the question for sure. But the Senate is not in session right now, so the best way promptly to get his views on Hillary's political-leaning SCOTUS is simply ask him right now.
2. Why be interested in asking only if he is on the "Scalia side" on rulings that went against the government?
I think you're missing the whole point of Scalia's approach to law, and the whole point of what's so screwed up with Hillary's. It's not that Hillary favors the "wrong" side. It's that, ab initio and a priori, SHE FAVORS ANY SIDE AT ALL in Supreme Court decision-making.
The reason defendants sometimes won with Scalia is that he never cared about WHO wanted which result. He cared only that the result in each individual case be reached by a neutral application of law, an application strictly faithful to the text of the Constitution.
Do you agree with Scalia's approach, or with Hillary's interest-group-result-orientation???
I am a textualist through and through, Bill, so I certainly agree with this aspect of "Scalia's approach." I am also a fan/believer of what I call "structural originalism" -- i.e., the framers built a system of horizontal and vertical checks-and-balances in the operation of govt powers, and I think the text should/must always be understood against that vision of govt. In other words, I think everyone who takes the text and the principles of our founding document seriously should always committed to taking the "side" of the individual over the govt, and always be taking "side" of smaller government over larger governments.
Though Scalia often gave expression to that vision of the text and the principles of our founding document vision in cases like Blakely and Crawford and Heller and Johnson (and CU and Kyllo and a number of cases that honor individual rights over government engineering for the public good), I think he deeply failed to give expression to those concerns in cases like Raich and Harmelin and a number of others where both the text and principles of our founding document would seem to run very strongly opposite his views in these cases. (Do you really think the text of the Constitution allows the federal government to prohibit and criminally punish me for what kinds of plants I want to grow in my home garden? Scalia seemed to, though other true conservatives like Thomas justifiably took a different view. Do you think the text of the constitution allows the 2d Amendment to be treated less seriously than other rights in the Bill of Rights? Scalia seemed to, though other true conservatives like Thomas justifiably took a different view.
I share your disaffinity for how Hillary answered the question on SCOTUS appointees, and I hope your suggested question gets asked of all her nominees. But I also have a disaffinity for Scalia's approach when he seemed, like Hillary, to put his political/pragmatic commitments ahead of a sound application of the text and the framers' construction of a system of horizontal and vertical checks-and-balances in the operation of govt powers.
Is that a sufficient answer to your good questions?
Sorry to be so late in responding. I've been running around and will be running even more this week.
I think Scalia was as disciplined as anyone on the Court in putting his personal likes and dislikes behind him.
On your noting on SLP that we did not note the Gallup poll on pot: CJLF takes no position on the issue. Kent regards de jure legalization as inevitable. I think pot has been de facto legal for decades, so it's not a battle that makes much difference. As every college-age kid knows, just smoke it in your house and nothing of legal consequence will come of it.
The main reason I oppose de jure legalization is that it would be a bad symbol of the further dumbing down of standards in this country. I may write a post about that, and, more generally, about the importance of symbols in law and culture. I'll just say for now that my support for the DP also takes root partly in its symbolic value of intolerance for inhuman conduct such as child murder, torture murder, terrorist murder, etc.