And then I wrote...

by Dick Schilling, "Editor Emeritus"

... that there is an old Chinese curse: May you live in interesting times!
Well, times for citizens of the United States just got a lot more interesting with the death of Supreme Court Justice Antonin Scalia. His death comes at a time of heightened acrimony between liberals and conservatives, and is almost certain to raise that level higher as thoughts turn to a replacement. Led by Scalia’s strict interpretation of the constitution, there has been a somewhat dependable hope around controversial cases for a 5-4 majority in favor of conservative ideas. That hope is gone.
So how does a new justice get named? The president normally nominates someone for the “advice and consent” of the senate. But with a far left president in office as a lame duck, conservatives in the senate say their advice is for him not to be able to do that, and they are not likely to consent. They fear he will stack the court against them.
Conservatives, who hold a senate majority, want the newly elected president to make the nomination, and they hope that will be a conservative president. If they stick together, they can probably delay and make that happen.
There are those who suggest the president wait until the senate takes a recess, and then make an “interim” appointment. But the senate could maneuver not to recess and block that.
But only until their terms expire, in early January. The president’s term does not expire until a couple weeks later, so does that give him an unthreatened opportunity for an appointment during those two weeks?
Is there a chance the president could find a nominee acceptable to both sides? One suggested replacement is an Indian-American. The court has an Hispanic and an African-American, so those who preach diversity might be happy. Except that sort of thing is not supposed to matter on the court, where only constitutionality, not popularity, is the decision.
And therein lies the real problem concerning the court.
Many times, the court has actually “created” law where none exists. Law “making” is reserved for congress in the constitution. Despite the tendencies of the current office holder, not even the president can “make” law.
And it is dangerous having the justices do so. One, Justice Ginsburg, has openly expressed contempt for our constitution. Another has suggested justices look at constitutions of other nations before deciding.
What happens if the court moves on with eight? Probably not much. Some lower court decisions will stand, and they about equally favor conservatives and liberals. Action may simply be delayed until the ninth is seated. It often takes years for a case to get that far anyway, so maybe that’s best.
Meanwhile, it is about to get more interesting.