‘Advice and Consent’ | Replacing Scalia on the Supreme Court: Ground Zero for Preserving the Constitution

On the afternoon of Justice Antonin Scalia’s ’s passing, Hillary Clinton gave a speech in Denver blasting Senate Republicans for implementing a zero-consideration policy of any Obama nominee. Senator Mitch McConnell announced earlier, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

Clinton argued the American people already expressed their voice in the process of filling the vacancy of the Supreme Court with the re-election of President Obama in 2012. “Elections have consequences,” she said, adding the president has a duty to nominate a replacement justice. “And the U.S. Senate has a responsibility to vote.”

Yes, elections do have consequences. But Clinton failed to mention the 2014-midterm elections, in which the GOP augmented their House majority and took control of the Senate. That election is consequential too. Americans voted and effectively halted the president’s liberal agenda, giving Republicans their charge to stand firm.

Considering the justices Obama already appointed, Sonia Sotomayor and Elena Kagan (hard-left jurists gift-wrapped as moderates), Republicans should be unapologetic in refusing to consider any nominee until post-election. Liberals decrying abuses misinterpret the constitutional process and appear hypocritical after Democrat leaders Joe Biden and Senator Chuck Schumer essentially prescribed the same previously.

The Framers designed the judicial branch to be the weakest of the three because it’s unaccountable by elections. However, over the last 85 years the Court wrongly dipped into many state-related issues and changed the Constitution from the bench. Contravening 10th Amendment rulings, beginning with Helvering v. Davis (1937), expanded the scope, size, and power of the federal government, and with it the deterioration of freedom.

As constitutional decline marches on, Congress has acquiesced its duty to correct course, handing the Supreme Court de facto lawmaking power. Therefore, maintaining a conservative majority is imperative. If a liberal justice replaces Scalia, the Court will advance left-wing policies and accelerate national socialism. Appointing the right justice now is a pivotal moment for the future of the American Republic.

Either we believe in our Constitution or we don’t. If we don’t, America will fade into history as a failed experiment in self-government. But if we do believe in our founding document that launched a great nation, then the enshrined principles of limited-government, rule of law, and protection of individual rights must prevail.

A quick glance at SCOTUS cases currently in limbo without a conservative majority and one can discern the gravity of the situation. These macro issues include the economy, energy production, state sovereignty, religious liberty, and the right to work, illegal immigration, life of the unborn, and executive overreach.

Like many built-in checks of the Constitution, to ensure accountability while preventing tyranny, the Framers wisely devised a dual-branch confirmation process. Article II of the Constitution says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”

Both branches are co-dependent on each other to seat a new justice. The three-step process includes: nomination (president), confirmation (Senate), and appointment (president). The president has full discretion to nominate whomever he wants. Likewise, the Senate has complete and final discretion in whether to accept or approve a nominee.

When an impasse exists between the two governing branches, the Constitution provides mechanisms to protect against degeneration and ensure the Republic’s stability. In this case, the 2016 election serves as such a mechanism. Each side will have to convince the public of the correctness of their respective positions. More importantly, during the coming electoral struggle Americans will need to consider the principles of our founding, the role and impact of the Supreme Court, and the proper method for interpreting the Constitution of the United States.

Brandon Beckham is a senior graduate student in the Legislative Affairs program at George Washington University, a former GOP state delegate and director of statewide campaigns involving constitutional rights in Utah.  Visit Brandon's website

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