Graves Registry: The GOP's Play-Doh Constitution


We have heard a lot about what a witty man Justice Antonin Scalia was since his death on Feb. 13. He was, we have frequently been reminded, a brilliant man. He was also, as far as any kind of marked social progress in the United States was concerned, an immovable object.

It goes without saying that he was beloved by conservatives for his strident objections to, among many other things, more stringent environmental laws, basic rights for minorities, and for health care for those who couldn't afford it. I wonder what witty remark Scalia will offer when a greater judge asks what he ever did for the least among us.

Justice Scalia was in the majority when the high court handed down its Citizens United decision, probably the lowest point in the Supreme Court's history since Dred Scott. It effectively took elections out of the province the American people and exposed them to the machinations of special interests through the torrents of money that immediately gushed forth from big business. After all, as Mitt Romney so memorably stated, "Corporations are people, too."

One of his last witty remarks was expressed during oral arguments in a case concerning affirmative action. From his lofty perch in the highest court in the nation, Scalia actually suggested that black people might fare better in "lesser colleges," where they would find the curriculum more suited to their limited capacity for processing knowledge. (As far as I know, Clarence Thomas didn't react to the outrageous assertion, but then Thomas never reacts to anything.) The staggering insensitivity behind Scalia's remark is all the more appalling because it came from a man who is supposed to represent an institution that exists as the last bulwark against bigotry.

Scalia was an Originalist, a man who regards the strictures set forth in the Constitution as being chiseled in stone. He believed that the document should be adhered to exactly as the founding fathers intended when it was written nearly 230 years ago. I think that it would be a perfectly viable ideology if it weren't for the fact that the world isn't chiseled in stone, an annoying detail that Justice Scalia adamantly refused to acknowledge while he dazzled the world with his biting sarcasm and his quotable quips.

About 17 seconds after the sheet was drawn over his recumbent figure at a hunting lodge in Texas, the venerable senior senator from Kentucky took time out from his crusade to keep allowing the byproducts of fossil fuels to foul the planet's atmosphere to inform the nation that as long as he was head honcho in the Senate, there wasn't going to be any talk of a replacement until the next president took office in 2017. It was an odd, if not entirely unexpected position to assume for a prominent member of the political party that is constantly holding up a strict adherence to the Constitution as if Moses carried the document down from Mt. Sinai as an addendum to the Ten Commandments.

Of course any conservative analysis of the founding fathers' intent have always been the result of careful crafting by a thousand well-compensated legal minds dedicated to shaping the meaning of the document into an interpretation that will dovetail nicely with their own retrograde, self-absorbed political philosophy.

Sen. McConnell doesn't give a tinker's damn that the Constitution specifies quite explicitly that the president of the United States will, in due time, nominate a replacement for a vacancy on the Supreme Court or that the Senate is charged with vetting his nominee. Republicans have brazenly repeated the lie that no lame duck president has appointed a Supreme Court justice for the past 80 years when Anthony Kennedy was appointed (and approved) in the final year of Ronald Reagan's administration.

What terrifies Mr. McConnell is the prospect of the appointment of a justice on the high court that is finally going to usher the country into the 21st century, where men like the ones in the coal industry that McConnell has served so slavishly all of his political life will finally be relegated to yesterday's bad news where they belong.

The GOP position on the vacancy has its risks. They are obviously banking on a Republican win in November despite the fact that they have no viable candidate. Just imagine the prospect of someone like Donald Trump naming a justice to the Supreme Court. The only analogy that comes immediately to mind is performing brain surgery on a picnic table in Pee Wee's Playhouse.

Alden Graves is a regular Banner columnist.


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