As one who typically writes creative nonfiction, using my platform to discuss things other than that genre of writing is something I usually resist doing, simply because of the growing divide I have witnessed over the past several years when it comes to politics. No other subject that I can think of these days brings out the worst in all of us faster than discussing politics. While I thought that this years Presidential Primaries would be the ultimate example of the disunion that has our nation tightly in its grip, I was wrong. As bad as this Primary season is, the lightning rod that has and will illustrate what I am talking about is the untimely death of Justice Antonin Scalia on Saturday.
Before I get into the whys and wherefores of this statement, there are a few things you should know. When visiting Washington DC four ago years with my family, we had the opportunity to individually spend part of one day doing something that we wanted to do and given a choice between visiting the White House, the Capitol or the Supreme Court, I chose the Court. In my mind, I could not go to Washington without seeing the Court and I ended up spending half a day there taking it all in.
For me, the Law is the framework that holds our society together. We are either a society governed by the rule of law or we are in anarchy. There really isn’t any in-between. The Supreme Court is the greatest expression of that belief to me. To wander the halls of the Court, drink in the history of it, see original handwritten drafts of opinions that shaped the law, stare at the oil paintings of the men and women who have sat on that bench and to actually see the bench itself was one of the highlights of my trip. It was also the quietest, least-busiest and most overlooked of the major Washington attractions. I even happened to have breakfast there in the SCOTUS dining room with Justice Stephen Breyer but that is another story.
To say that I have always had a love for the law and by extension of that, the Supreme Court, would be an understatement. Some of the greatest writings and opinions on the most pressing matters of our time can be found in the pages of the Justice’s opinions and dissents. Insightful, at times witty and withering, penetrating, observant and often inspiring words flow from the pens of the nine justices who sit at the pinnacle of the legal system of our nation. They are the interpreters and guardians of the Constitution as it relates to the many laws that might serve to either uphold it or undermine it.
Needless to say, I was shocked on Saturday evening to hear that a Justice…ANY Justice of the Supreme Court….had died unexpectedly. My first thought was that it was probably one of the retired members of the Court but then I learned it was Scalia that had died unexpectedly at a resort in a remote part of Texas. Antonin Scalia, the right arm of the court, the most outspoken of all the Justices and certainly one of the most conservative. My next thought was that “This is going to change everything” and when you think about it, it will.
Given the timeline of what occurred that evening, I don’t even think that Justice Scalia’s body had been transported from the resort before a very different court, the court of public opinion, had erupted in force, spewing a volcano of verbal vomit with every Tweet, comment and editorial. Add to that ruckus the Republican candidates debate scheduled for that evening, an event with an established precedent of backbiting, name calling and jockeying for position and you had the perfect microcosm from which to view the total and complete dysfunction that has become the United States of America in 2016.
Certainly there are reasons to be concerned. For the conservatives, a major voice has been lost, one who played a major role in shaping the legal landscape over the past 30 years, not so much for his opinions and dissents, which were legendary but for his dogmatic pursuit of originalism in the interpretation of the Constitution. It is important to understand that in his case, this doesn’t mean the intent of the original framers of the Constitution so much as it does the meaning of the words they used.
For the liberals, many of whom did in fact admire Justice Scalia for a variety of reasons even if they disagreed with him, it is an opportunity for a liberal President to replace a conservative member of the Court with one whose ideology is more reflective of his values before he leaves office in less than a year. This of course worries the conservatives to no end. The problems that now stem from both sides of the political spectrum are apparent for all to see.
Republican politicians (Conservatives) honestly believe that President Obama, a Democrat cruising towards political retirement and a Presidential Library should not nominate anyone for the bench given that his term is running out. Let the election decide who the next President will be and let that person nominate someone.
Democratic politicians (Liberals) believe that Obama should nominate someone with all due haste, given that he is the sitting President with just under a year to go in office and their natural inclination would be someone who shares their views, beliefs and values. They then fully expect that the Republican controlled Senate will and must confirm that nominee.
The Republicans are already drawing the battle lines, making statements that they will effectively reject any candidate put forward by the President and that they will not even move to take action until a successor is elected. The Democrats are digging their heels in with cries of obstructionism and making plans to thwart them at every turn.
Both sides will use this to push their advantage in the elections to come. If the Republicans block or delay a confirmation until the President is out of office, the Democrats will rally the troops to put their candidate in so he or she can get that spot filled by a Justice of their choosing. The Republicans will do the same under the pretext of stopping the Democrats from filling that seat and potentially swaying the idealogy of the Court.
They are all living in a political Fantasyland as they rush headlong towards an intersection of opposing beliefs, incompatible values and irreconcilable differences and they are, unfortunately, representative of what we have become as a society.
There was a time where you had a few on the extreme left, a few on the extreme right and all the rest of us somewhere in the middle. Our personal values defined us, meaning that those values might find us on the side of the conservatives on some things and on the side of the liberals on other things. Certainly there are Democrats who abhor abortion and Republicans who strongly believe in choice. Surely there are Republicans who believe in gay marriage and Democrats who revile it. A political party cannot define who we are as a person by determining for us our beliefs.
As a society, we used to debate our differences, hoping to convince the other side of the merits of our case and win them over to our causes. We educated ourselves in the facts, drew our conclusions, took a position and debated the supporting points, respectful that others had differences of opinions.
Nowadays we argue, insult, demean and defame others for having an opinion different from that of our own. If we can’t convince them, destroy them. Don’t be open-minded to the possibility that you could be wrong. Focus on one task, that being to recognize that anyone with an opinion different from our own is dangerous and therefore must be eradicated, lest they spread their vileness to poison the minds of others. That has kind of become who we are now, in a nutshell.
It’s a societal mindset in 2016, fed by political candidates seeking to hold the highest office in America. Our frustrations as a society are fueling and legitimizing the candidacies of people that we would have never seriously considered for that office 20 years ago. It has been so long since we have seen true leadership that we no longer know what it looks like. I’m talking about the kind of leadership that once inspired us as a nation and lifted us to the advanced state of citizenship that Americans used to aspire to.
Boiled down, the President of the United States has a responsibility now. The Senate will also have a responsibility as well and all must act to do their duty and to uphold the Constitution that they swore to defend. When someone finally is selected, that person will not only uphold the Constitution but will become part of the living embodiment of it, an awesome responsibility that transcends Presidencies and Congresses.
That the President will do his duty I have no doubt. Whether he will do it well, I do have some doubts but at the end of the day I must respect the system that our founders put into place and his right to do it.
As for the Senate, I do worry they will do whatever they can to delay an appointment and if they can’t delay it, they will likely vote down whomever the President sends to them. If it is done for the right reasons, so be it. Remember Robert Bork and his failed confirmation to the court many years ago and know that sometimes there are good reasons for it…but delaying for the sake of delaying serves only the interest of some and not the interests of all.
Many wait for justice that could be imperiled by a tie vote of the Supreme Court. We have to start thinking about what is good for America and sometimes it’s better for everyone to be just a little unhappy than for half the country to be furious and vengeful. This is the breeding ground for hatred and hateful acts. Compromise, weigh the options, constructively debate the issues and think about what is the greater good for everyone and not just the right or left of a political party.
Yesterday, I wrote a response to an article in the New York Times that sums up how I feel about this situation. I wrote that “I was a great admirer of Justice Scalia as a jurist and arbiter of the law as well as one of the greatest opinion writers on the Supreme Court. He did in fact truly shape much of the legal landscape during his thirty years on the highest bench in the land.
That being said, he is dead now and the duty of the President is to nominate a qualified and suitable successor while the duty of the Senate is to properly vet said candidate and confirm him or her to the Court.
To expect the President to abrogate his responsibilities in this matter with eleven months to go is nearly as ludicrous as to believe that the Senate will not abrogate their own responsibilities.
For either not to do their Constitutional duty now is an insult to the institution and ideals that Justice Scalia stood for and defended with such vigor. The Supreme Court is not and should not be the ideological playground of the liberals versus the conservatives but must in fact be the impartial citadel of the law, its meaning, its literalness and its absoluteness”.
I honestly do believe that last statement about the Court. In many ways, I see it as the last functional bastion of our federal government, flawed certainly but absolute and enduring, relying firmly on the great principles in which our country was born from. The chamber of the Court is where the law is vetted and found to be worthy or unworthy of our nation and its beliefs. It is the vanguard of the beliefs which define us and the values which once made our nation a beacon of light for others to follow. The rule of law seems to, among other things, govern the worst that is in us and ensures that each of us are able to seek and secure a fair and equitable measure of justice. I just hope that the worst that is in us today stays outside the doors of that chamber in the weeks and months ahead of us. We are better than this.