Some have praised the Republican-controlled Senate’s blockade of Antonin Scalia’s Supreme Court seat as a winning campaign strategy with a big political payoff. However, if Republicans don’t follow filling Scalia’s seat with comprehensive judicial reform, they’re playing a rigged game, not the long game.
In an article at Salon titled “Now Trump gets the Supreme Court — and the damage may be irreversible,” Amanda Marcotte outlines just how bad the highest court in the land will become with Donald Trump in the Oval Office:
It’s difficult to deny the conclusion that, in the end, Republican voters are more organized and focused on the long game than Democratic voters, and that ability to focus will pay off. Trump will likely be out in four years — possibly less, if the quickly mounting scandals result in enough legal troubles — but the damage he’s likely to do with his court appointments will last years and in some cases generations.
Using the courts to dismantle the right of workers to unionize, for instance, will pay off dividends for Republicans long after Trump leaves the White House in the inevitable cloud of shame and disgrace …
It’s the same story with conservative lawyers’ chipping away at campaign-finance laws … Just as important, elevating the power and voice of the wealthy over everyone else will help Republicans continue to capture more state legislatures and congressional seats, reinforcing the horrific situation we have now, whereby a Republican minority is ruling over a Democratic majority.
As flattering as Marcotte’s post-mortem may be to Republican voters and activists, it looks a little overblown when you look at it from the Right. It’s hard to imagine that Scalia’s replacement will be able to produce the kind of leftist dystopia that she describes; all the evidence is against it.
First, not only do Republican presidents have an abhorrent track record of nominating federal jurists that actually retain their fidelity to the Constitution (Justice Anthony Kennedy is merely the tip of the iceberg, folks), but the historical data also show that justices on the whole, as a rule, drift further to the Left with age.
Furthermore, even Scalia himself saw the SCOTUS bench for what it was (and still is), telling a group of laws students months before his death, “The whole time I have been on my court, it has been a liberal court.”
Indeed, even if Donald Trump were to literally clone Justice Clarence Thomas and get him confirmed by the Senate, the American people would still be saddled with a judicial body that only has three consistent Constitutionalists.
If Republicans were truly as focused on the long game as Salon’s Marcotte alleges, they would focus on pressuring Congress to use the powers enumerated in Article III of the Constitution to pass comprehensive judicial reform that curtailed the power of the judiciary — as envisioned by the authors of the Federalist Papers. This sort of measure would help protect and advance conservative causes for generations to come — not just what will prove useful until there’s another major vacancy on the court with a political opponent in the White House.
It should be one that is truly the weakest branch of government. It should be a judiciary with — as Alexander Hamilton put it — “neither force nor will” to do things like run roughshod over the 10th Amendment, redefine ancient institutions at will, or craft an extrajudicial amnesty system out of thin air by acting as a black-robed super-legislature.
Political memories, unfortunately, are short, and now the primary focus on the Right is simply filling the vacant seat, rather than fixing the system.
Without these sorts of reforms, conservatives will still find themselves fighting electoral battles for the right kind of oligarchs to usurp sovereignty away from the American people with the stroke of a pen.
The GOP may have run the score up in this quarter, but unless they restore the proper rules while they have the chance, the only long game they’re playing is a rigged one that only favors the left side of the field.