The death of Antonin Scalia resurrects the decision he wanted us to forget: his protagonist’s role in the Supreme Court decision that gave us eight years of George W. Bush.
As in November 2000, Republicans are again trying to hijack the Constitution and undermine the democratic process.
Back then, Gore did in fact win the presidency, not only in popular vote nationally, but also by the electoral vote in Florida. Republicans railroaded Bush into office. In November 2000, a consortium of major news media investigated and found that Gore had won in Florida. They did not push the “send” button when the Democrats gave in for fear that the institution of the U.S. government would be in jeopardy if they protested the Supreme Court’s decision.
Now Democrats face another monumental choice: to push and rally public opinion for confirmation and then to make sure they have an electable candidate for president.
One Supreme Court justice still serving and now praising Scalia said that the Bush v. Gore decision was tantamount to a coup d’etat. (The comment was made off the record.)
“Get over it. It’s so old by now,” Scalia said once and again when people harped on the majority-Republican Court’s decision to hand the presidential election to Bush. As Scalia is eulogized as a brilliant and a charming friend by those who knew him and even those who disagreed with him, look no further than Bush v. Gore. We will not soon “get over it.” That decision will be forever tied to Scalia and his dominant role on the Court in the late 20th and early 21st Century.
Scalia, the man who championed decisions based on the letter of the Constitution, did not have a constructionist explanation for his vote in that shattering decision — the Court majority chose its favorite to be the 43rd president of the United States.
Republicans now argue that the appointment of a new justice should be “left to the people,” meaning the 2016 presidential election should be a referendum on the Supreme Court.
They would thus declare that President Barack Obama — chosen by a majority of the people — is not entitled under the Constitution to appoint a new Supreme Court justice.
President Obama’s authority to replace Scalia is a settled matter by virtue of the 2012 presidential election. And he says he will fulfill his part of the bargain of popular democracy and will nominate a Supreme Court justice.
Democracy is worth fighting for.
I side with Paul Krugman’s modest suggestion: “Maybe we should all start wearing baseball caps that say, ‘Make America governable again.’ “