The sudden passing of Justice Antonin Scalia gives President Obama the chance to appoint a new Supreme Court justice and alter the ideological balance of the court.
Republicans, of course, will do everything in their power to stop him, but then that’s all they’ve done for seven years now, so why should 2016 be any different? To be fair, back in 2007, some Democrats advocated blocking any Bush appointments to the Supreme Court during his final year and half in office, too.
Play all the partisan games you want, but the president does have the authority and the duty to fill Supreme Court vacancies until the day he leaves office and he should do so. Fortunately, both of Maine’s U.S. senators understand this.
There is speculation that Obama may appoint federal appeals court Judge Sri Srinivasan, an Indian-born centrist who would become the first Hindu on the Supreme Court. At Srinivasan’s confirmation hearing in 2013, Sen. Ted Cruz asked him if he thought the Constitution was “a living document,” a conservative litmus test meant to weed out activist liberal judges.
“I would say no,” Srinivasan replied. “The Constitution has an enduring, fixed quality to it.”
“An enduring, fixed quality to it,” yes, but of course the Constitution is a living document. It provides for its own amendment. It must be applied to situations that the framers could not have foreseen. It must be interpreted because the meaning is rarely obvious and changes over time. It is meant to change.
The Senate confirmed Srinivasan 97-0, so I can’t wait to see what tortured logic Republicans may use to try to block the nomination of a federal judge they unanimously confirmed just three years ago.
To conservatives, the Constitution was dead on arrival, just as the Bible is for fundamentalist Christians. “God said it. I believe it. That settles it.” “James Madison wrote it. I believe it. That settles it.”
If only it were so easy.
The Constitution and the Bible are both inspired, but flawed, human documents that can guide personal and societal behavior. They should not be allowed to dictate it as though the meanings were clear, known and agreed upon by all. If “Thou shalt not kill” meant what it said, Christians would all be pacifists opposed to the death penalty.
I am a lifelong member of the United Church of Christ who believes “God is still speaking,” that the immutable laws were not laid down once and for all thousands of years ago. Just so, I believe the Constitution is a living document, not a dead dogma to be followed slavishly.
Antonin Scalia, however, was a self-described originalist. He believed the Constitution was intended to prevent change.
“I am one of a small number of judges, small number of anybody – judges, professors, lawyers – who are known as originalists,” Scalia once said. “Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.”
But it is not always possible to know what was in the minds of dead colonials. That’s why so few intelligent people are originalists. But Scalia, even while admitting that most judges disagreed with him, insisted he was right.
“The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break,” he said, arguing against a flexible interpretation. “But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”
Funny, the Constitution doesn’t say anything about corporations, yet Scalia and his conservative cronies on the Roberts court had no problem deciding corporations were citizens in the wrongheaded Hobby Lobby decision. So please don’t tell me Scalia was always true to original intent.
And now Scalia’s death presents a knotty little problem for originalists, in that the Constitution clearly states that a president’s term is four years and that he/she shall appoint justices of the Supreme Court. I can certainly understand why Republicans would rather not have a Democrat appoint a new justice, but that is what the Constitution calls for.
So what part of original intent don’t they get?
Originalism, like fundamentalism, is a function of the conservative mind, which does not easily deal with complexity and is generally guided by fear. But you can use the Constitution and the Bible to support almost any argument you want. They do not have fixed, commonly understood and agreed upon meanings. If they did, we would not need a Supreme Court or a Supreme Being, we could just read what the dead have written.
Freelance journalist Edgar Allen Beem lives in Brunswick. The Universal Notebook is his personal, weekly look at the world around him.