In '16, all branches are on the ballot

CLARENCE PAGE

THE CHICAGO TRIBUNE


The Onion's wizards of wacky wit struck just the proper tone with this headline: "Justice Scalia Dead Following 30-year Battle With Social Progress."

I can easily imagine the late Supreme Court Justice Antonin Scalia, who professed a robust belief in the existence of heaven, would have nodded his approval of that satirical sendoff.

He defended his conservatism with the happy abandon of William F. Buckley's classic definition of a conservative: "someone who stands athwart history yelling 'Stop.'"

Scalia was a giant as an "originalist," which also is the title of a play about the justice that premiered in Washington last year.

Originalism, simply put, holds that the Constitution must be applied based on the original meaning of its text, not on legislative history or the assumed intention of its authors.

In other words, we are to judge justice in today's world by the standards of a time when women and nonwhites could not vote and slaves were counted as three-fifths of a person for purposes of reapportionment.

I prefer the view of the late Justice Thurgood Marshall, who was about as liberal as Scalia was conservative. Marshall observed that the original Constitution should be celebrated, not for the rights it failed to include but for the ingenious ways that it contains the tools for its own improvement — through the amendment process.

Yet as much as I disagreed with Scalia, I read his arguments with the admiration of someone who appreciated the challenges he posed. Regardless of where you stand, it pays to keep track of what your adversaries are up to.

I also admired his cordial relationship with his liberal colleagues, particularly fellow Justice Ruth Bader Ginsburg. As one long-tenured Washingtonian once told me, "If you let politics get in the way, you'll never have any friends in this town."

Which brings us to the big political showdown that Scalia's death immediately ignited.

The White House announced that President Barack Obama will nominate a replacement. Senate Majority Leader Mitch McConnell, among other Republicans, demanded that the task be left to the next president — who they, of course, hope will be a Republican.

Suddenly the vacancy has turned the future of all three branches of government into a presidential-election-year issue.

That may well be a big favor to the Democrats in a year that so far has not brought out nearly as many of their voters as Republicans have seen. As much as Obama excited liberals eight years ago, anger at Obama now energizes conservatives.

That also could be good news for Hillary Clinton, who looks barely like the Democratic presidential front-runner. Republican stubbornness and the high stakes involved with a lifetime appointment to a Supreme Court seat give Clinton something her campaign so far has oddly lacked: a theme.

Think about it. Donald Trump has "Make America Great Again." Bernie Sanders has his battle to take back the real America from "the millionaires and billionaires."

Clinton? So far, her big theme boils down to a third term for Obama's policies, more or less.

Against the big "revolution" that Sanders promises, she offers sermons on pragmatism — incremental changes that "get things done," even if they are not all that you might dream of doing.

Trouble is, people are far easier to motivate with revolution than pragmatism, even when the details of the revolution leave a lot of unanswered questions — such as how it is to be paid for.

With that in mind, it would have been a wiser strategy for Republicans to play along with the justice nomination process in the way it usually has been done: Invite the president to send a nominee, then drag your heels in the vetting process. Then, after running down the clock, reject the nominee and force the process to start over again.

But today's generation of Republican lawmakers and their party's base don't want to hear about such subtleties. As a result, they may stir the sort of backlash from previously apathetic liberals that cost Republicans dearly in 2012.

History could repeat itself, once liberals remember what's at stake: The future of civil rights, abortion rights, press freedom, gun laws — you name it.

As Justice Marshall said, the Constitution contains the tools for its own improvement. One of those tools is our right to vote. Use it or lose it.

Contact the writer: cpage@tribune.com

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