Unfortunately, the likelihood of replacing Scalia -- the court’s pre-eminent legal mind -- with even a pale imitation is slim. For it to happen
- the Senate will have to exhibit fortitude and delay the nomination of a successor.
- a Republican will have to win the presidency.
- the GOP will have to retain the Senate, and 24 GOP seats but only 10 Democrat ones are up for grab,
- the Republican president in office will have to nominate someone not a wolf in constitutionalist’s clothing; the chances of this alone happening are likely less than 50 percent.
The problem is we have allowed the Supreme Court to have what is called Judicial Supremacy with few exceptions since the 1803 Marvury vs. Madison ruling where the Supreme Court simply declared it. The Supremes, contrary to the Constitution, and popular imaginings, do not have judicial supremacy, and when legislators and the executive bow to an illegal ruling, they are breaking the law, plain and simple. Unfortunately, that has too often been the case during the last century, as the idea of a living constitution has taken hold. Justice Scalia's philosophy, and my own, is that the Constitution was written with ink, on parchment, and what it says stands until it is amended per the Constitution.
The idea that the Constitution is "living" came about because leftists (liberals, socialists, progressives, or communists depending on the era) were unable to get their agenda passed through legitimate means, so turned to the courts. In an attitude of "if we can't beat them, join them," conservatives have come to rely on the courts as well, and we have had limited success, particularly concerning Second Amendment issues. Scalia''s sudden death, however, has made abundantly clear the precarious ground on which we have been standing. When a single vote by one of nine people, people just like the rest of us with, no more moral authority, can change the "law of the land" as they apparently did in Obergefell, then we are no longer living in a nation of laws, we are ruled instead by nine autocrats seated in Washington.
The Founders would be rolling over in their graves.
But I did mention a solution, did't I. In Duke's words:
This brings us to Scalia’s comment, made in his dissenting opinion in the 2015 Obergefell v. Hodges (marriage) ruling. To wit: with “each decision... unabashedly based not on law” the Court moves “one step closer to being reminded of [its] impotence,” he warned his colleagues. To what was he referring?
Obviously, the Court has neither army nor police to enforce its judgments; it is government’s executive branch -- headed by the president on the federal level and governors in the states -- with the constitutional warrant to enforce law. And whatever executive branches don’t enforce doesn’t happen, period, no matter how much black-robed lawyers stamp their feet.What we need are more courageous conservative politicians to simply ignore uncostitutional rulings, ignore unconstitutional precedents, and begin steering the ship of state back to its moorings. But politicians alone can't do it. No man is an island, and if a politician feels, as he often must, that he is standing on a branch that is about to be sawed off...well, what do you expect? Conservatives have to take yet another page from the leftists playbook, and become more active in supporting conservative causes, making ourselves heard, making of ourselves an absolute pain in the patuckus. It is the only way we have been able to fight the gun grabbers to a stand still, and it is what needs to happen to the rest of the conservative causes.