“Can President Obama name a winner to the Supreme Court?”
Justice Antonin Scalia’s death is a body blow to the 2016 race for the White House; it sets up a profound conflict between the three branches of our government and in the Presidential campaign among various candidates.
The President is obligated per the Constitution’s Article II, Section 2, to nominate a new member to the court to replace Justice Scalia. The Senate is obligated per the same Article II, Section 2 of the Constitution to “advice and consent” on that nomination. In this case the Court has no say whatsoever in the process. It must accept whomever is confirmed by the Senate.
The President says he will send a name to the Senate soon. Senate Majority Leader Mitch McConnell says there will be no vote on any Obama nominee. The Senate will wait until a new President is elected and names a person to the Court, says McConnell.
Justice Scalia was confirmed by a 97 to 0 vote in the Senate back in 1986 in the wake of the scurrilous Democrat rejection of Judge Robert Bork. Democrats created the modern attack storm on Supreme Court nominations in the Bork campaign that was so sleazy Democrats even investigated what movie rentals Judge Bork made from Blockbuster. Looking for a little”porn?”
Much to the chagrin of Democrat Senators, Justice Scalia turned out to be the most influential Supreme Court justice since Chief Justice Earl Warren.
While the Warren Court pioneered new legal paths in criminal justice and civil rights (Miranda, Brown v. Board of Education), Scalia introduced a legal philosophy that included “originalism” and “textualism” to looking at the Constitution and congressional law.
What did 1790 Americans think of issues such as the death penalty? That is an “originalism” question Scalia asked. How did 1790 and 21st Century Americans define words in their lives that are used today to define issues? That is “textualism.”
Example: Is the death penalty unconstitutional because some claim it is a violation of the Constitution’s Eighth amendment that prohibits “cruel and unusual” punishments? Scalia’s view was that 1790 America had a death penalty by hanging. Complaints now about the electric chair or lethal injection being “cruel and unusual punishment” were not valid in his view because certainly they were less “cruel” than hanging. The real question, in his view, was: If hanging was totally legal in 1790, is there any question that lethal injections or gassing or the electric chair are not totally legal today? Death penalty means death. Legal in 1790, legal today.
Would President Obama nominate anyone to the Court that might conceivably think like that? NO. Anyone he nominates to fill Scalia’s seat will be against the death penalty. Why? Because that is his world view. Most of the Senate knows that. Certainly Obama is not stupid enough to send a name of a wild-eyed liberal to the Senate; no, he will send someone recently approved by the Senate for a cabinet post or to an appellate court. Anyone he sends to the Senate will tilt the court to the left and that is not acceptable to the Senate Leader. Ninety nine choices out of a hundred will not be acceptable to the Senate.
There is one name, however, that could get every single Republican vote. Who?
The man who is acceptable in these precincts is the fabulously qualified man who rose from abject poverty in Honduras to true college and Harvard Law School star whose brightness as a Department of Justice lawyer, scholar and exceptional American is unmatched even as English is his “second” language. He so frightened Democrat Senators that they refused to give his nomination by President George W. Bush to the Washington D.C. appellate court a vote. They wouldn’t even vote on his nomination in the very first year of the Bush Administration.
Miguel Estrada is his name. If President Obama would send his name to the Senate, Estrada would receive every single Republican senator’s vote. Estrada would be the first American Hispanic male on the court. President Obama, listen to me; you might save your legacy from the ashcan of Hispanic American history by nominating the superbly qualified Miguel Estrada to the Supreme Court.