Discover more from Kevin McKenzie
It Doesn't Matter Who's Nominated to the Supreme Court
I recently had a short exchange with Conor Friedersdorf, columnist with The Atlantic, and well worth reading, regarding who he would prefer to have nominate the next Supreme Court Justice.
I went on to scoff at his claim, not because I would prefer a Trump or Hillary nomination, but because I simply don't believe that it matters who appoints the next justice. I used the example of Chief Justice John Roberts upholding Obamacare as constitutional because he claims it's a tax. Roberts was nominated by George W. Bush, so-called conservative, and he upheld the bane of conservative Republicans everywhere. Friedersdorf responded:
The point was not to say that that it doesn't matter who's nominated because Obama, Hillary, and Trump would appoint interchangeable clones, but rather that anybody that they would nominate, while marginally different from one another here or there, would be guaranteed to grow the power of the federal government overall. We can take any of the current justices, including Scalia, and find decisions where we think they were right on the money, but if we look at their tenure as a whole we'd likely find every single one of them has done more to grow the federal government than to limit it.
Scalia, for example, wrote a wonderful opinion in favor of the Second Amendment in District of Columbia v. Heller, but also defended torture. On the one hand, Scalia states, "The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning," in Heller, but then goes on to conveniently ignore that "normal and ordinary" meaning in his defense of torture.
Scalia states that torture would be unconstitutional if enacted as punishment of a crime, but otherwise states, "We have never held that [torture is] contrary to the Constitution. And I don’t know what provision of the Constitution that would, that would contravene." How about the very clear text of the Tenth Amendment which states that any power not granted to the federal government in the Constitution is forbidden to the federal government? As the Constitution does not grant the U.S. federal government the power to deem a person an enemy combatant with no charge or trial and then torture them, it seems safe to say that they do not have that power under the Constitution.
So which is more important? Defending the right to bear arms in Washington, D.C., or providing cover for the U.S. government as they lawlessly go around the world capturing and torturing people accused of no crime? I think my opinion is obvious, especially given my previous writings, but I find it hard to argue that a person's right to own a handgun is somehow more important than another person's right not to be kidnapped, taken to a prison without trial, and routinely tortured.
Getting back to the point, however, even Scalia, considered the most conservative member of the court in many years, thus implied to be the biggest enemy of the growth of government on the court, did everything he could to grow the power of the government in certain areas. In other words, it doesn't matter who takes Scalia's spot because we can pretty much guarantee that the horrible things they support will outweigh the good things. If a person was actually interested in limiting the federal government as a whole they would never be considered by any of the candidates currently running for President.