Dear America,
The main topic discussed on every newscast these days is the death of Antonin Scalia, the arch conservative Supreme Court justice who unexpectedly died a couple of days ago. He was seventy nine, but his intellectual alacrity was undiminished, and his physical vigor never seemed to be in issue. His nearly beatific visage was the face of conservatism--especially in the realm of constitutional law--but that angelic countenance belied what I often thought was a tendentious philosophy designed to reify the conservative ethos that seems to have swept over this nation like a brush fire from time to time...today especially. Through thirty of the past fifty odd years, Scalia sat on the Supreme Court fanning the flames. I found his thinking teleological in that his goal was to enforce certain conservative principles even when they were paradoxical. For example, his general subtext was that government should have just as much power as the constitution specifically articulates, but no more. Yet in cases like Anderson v. Creighton he bent over backwards to support government intrusion, apparently presuming himself that such intrusions were all in a good and righteous cause: the old, if you have nothing to hide, government intrusion shouldn't be a problem routine. Thus, in Anderson, which involved warrantless entry into an innocent family's home, Scalia accepted on its face the assertion of Anderson, an FBI officer, that his entry was justified by probable cause to believe that a fugitive was within the Creighton home, which is a permissible reason to violate the fourth amendment right to be free of such warrantless searches. But though the factual basis for Anderson's claim of probable cause was in dispute. The trial court had not allowed Creighton--the plaintiff who claimed that his right to be free from warrantless search and seizure except when there was probable cause to believe that exigent circumstances prevailed--to conduct the otherwise permitted discovery process needed to either confirm or refute the claim of probable cause. In other words, Scalia voted to allow law enforcement officers to claim probable cause to violate rights and then to prohibit the victim of such intrusions into their lives from demanding proof that probable cause existed. The related law is quite complex with regard to the extraordinary power to ignore the fourth amendment rights of Americans, but Scalia used that law to camouflage the Supreme Court decision, which Scalia himself wrote, to give such officials complete impunity. Like Richard Nixon, he asserted that if a law official says he acted lawfully, then he acted lawfully. Thus, I am compelled to believe that Scalia believed in the constitution except when it interfered with the illusions he harbored as what Eric Hoffer called a "true believer," that is, a person who believes in government uncritically thinking that such blind loyalty is the equivalent of patriotism. That's the Scalia paradox. That's what the Nazi's relied on...true belief. It's innocent, but it's deadly.
So now, Republicans are doing everything they can to avoid appointment of anything but another true believer to the Supreme Court, and they have seized on the fact that President Obama, who will have the right to appoint the replacement justice with the "advice and consent" of The Senate for another eleven months, is a lame duck president right now to prevent him from making the nomination that it is not just his prerogative, but his right and his duty. The argument--a very "Scalian" argument I might add--is that the American people should decide who is qualified to make that nomination in the coming presidential election, and that tradition has made it so...like the filibuster's use to obstruct everything that the minority party doesn't like. But that argument conveniently ignores the fact that the American people have already spoken on that issue...in 2008, and they repeated themselves in 2012. In fact, polls show that if President Obama were running for office again, which he can't, he would beat either Bernie Sanders or Hillary Clinton by nearly thirty points. Thus, given that no Republican other than Donald Trump can get even twenty percent of that party's votes--and no one wants Donald Trump to appoint the next Supreme Court justice--Obama's judgment on the subject is what the American people endorse. This "voice of the people" pretext that conservatives are arguing is actually the petard by which they are hoisting themselves, to paraphrase the immortal bard of Avon. And that's why the Republicans won't win the presidency in 2016. They keep doing the same thing, and in the end they wind up apologizing for it. Casuistry is not a political strategy. It is just hypocrisy, and even Republicans...for the most part...don't like it. You can't trust a casuist, which is essentially like saying you can't trust a liar.
I predict that the Republicans in The Senate--led by the chief casuist, Mitch McConnell--will see the error of their ways just as they did on the issue of shutting down the government over the budget. But they won't do it until they have fired their foot-shooting pistol one more time, and they we'll all be safe from a would-be Republican president. Go to it Mitch. Do your worst.
Your friend,
Mike
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