RUTHFULLY YOURS

At its best, the Supreme Court functions precisely as it was intended: as an antidemocratic brake on popular legislative and presidential passions when those passions do violence to the law, the Constitution, and the Bill of Rights. At its worst — and it often has been at its worst of late — it functions like Iran’s Guardian Council, a collection of black-robed faqihs and jurists that sits above and outside the political process, using its position and privilege to impose on the nation a narrow set of social values decocted from the political ether.

With the death of Antonin Scalia and the prospect of replacing him, we are faced once again with the question: Does the law mean what it says, or does it mean whatever people with power want it to mean at any given moment?

Contrary to Josh Barro and others who insist that there is no longer any live issue of principle here, only two competing political factions wishing to use the Court for their own policymaking ends, the question pressed by conservatives is now, as it long has been, what the proper role of the Supreme Court is. Consider the question of abortion. Conservatives have not sought to have the Court act as a super-legislature and enact a federal ban on abortion; rather, conservatives have insisted that the Constitution is silent on the question, that Roe v. Wade is an act of willful judicial imagination, and that the question is properly left to the states and the legislatures.

The habitual labeling of Scalia as a “conservative,” as though he were simply using the Court to do what Jeff Sessions does in the Senate or Ken Buck does in the House, is a libel. As opposed to the outcome-oriented, decision-first/reasoning-afterward approach of the Court’s Alice in Wonderland progressives, Scalia often reached decisions that annoyed conservative political activists — because the law demanded it. The Left complains that Scalia was an unthinking “fundamentalist” on the Second Amendment, without taking a moment to consider that he approached the First Amendment in precisely the same way. When conservative legislators wanted to abridge free-speech protections by passing a statute against flag burning, it was Scalia who stood in the way.

It has become an iffy idea to cross Barack Obama. After seven years, the president has created a Hugo Chávez–like deterrent landscape, intended to remind friends and enemies alike that he is perfectly willing to use the federal government’s vast power to go after those he finds politically inconvenient, while exempting those he understands to be sympathetic to his agendas.

In Freudian fashion, Obama has long joked about using the power of government in a personal way. As early as 2009, when he had been invited to give the Arizona State University commencement address but had not been granted an honorary degree, he warned of rogue IRS audits: “I learned never again to pick another team over the Sun Devils in my NCAA brackets. . . . President [Michael] Crowe and the Board of Regents will soon learn all about being audited by the IRS.” Jesting about politically driven IRS audits is always scary — scarier when life imitates art in the age of Lois Lerner.

Remember when Obama, on the Spanish-language Univision network shortly before the 2010 midterm elections, urged Latino groups to join him, in ancient tribal us/them fashion, in going after “enemy” Republicans. Instead of sitting out the election, he told them in community-organizing fashion, they should say: “We’re gonna punish our enemies, and we’re gonna reward our friends who stand with us on issues that are important to us.”

That threat recalled his 2008 campaign braggadocio about urging his supporters to bring (of all things!) “a gun” (“If they bring a knife to the fight, we bring a gun. Because from what I understand folks in Philly like a good brawl”), and “to get in their face” (“I need you to go out and talk to your friends and talk to your neighbors. I want you to talk to them whether they are independent or whether they are Republican. I want you to argue with them and get in their face”).

In such matters as the death of a great man, respect matters — especially from our political leaders. Dignity and sober ceremony are called for. These are not trivial requirements, nor are they mere accessories to the event. They are part of the bedrock of enlightened civilization. Surely when America’s president appeared before the TV cameras Saturday evening to deliver his scripted remarks about the death of a Supreme Court Justice, the great Antonin Scalia, Obama should have taken the trouble to dress at least as well as your average law student applying for a summer job.

Instead, flanked by the flags that signal ceremony, but dressed-down after a day on the golf course, the top button of his shirt undone, Obama appeared without a necktie.

TV commentators, in their instant reaction, focused on Obama’s remarks, which combined a brief eulogy of Scalia with Obama’s marker that — suddenly interested at this late date in the Constitution — he expects to have the pleasure of seeing the Senate confirm whomever he nominates as a replacement, rather than waiting for the next president.

But to my mind, the real statement was Obama’s casual omission of a tie — with the attendant implications of disregard for his own office, for the Supreme Court, for the American people he was addressing, and for the late Justice Scalia, who was extraordinary above all for his dedication to liberty. Which does not figure large on Obama’s agenda.

One can only guess what went into Obama’s sartorial choice for these televised remarks to the nation. Did he have no necktie available? He was speaking from California. Has California run out of neckties? Was no one among his ample staff or crowd of golf buddies able to locate one, during the hours leading up to his televised remarks? Did he put one on and then yank it off at the last minute — which would account for his rumpled collar — having decided it was a tad too formal for a golfing weekend? Were his remarks so inconveniently sandwiched in between golf and dinner that he simply skipped that last touch?

Now that Supreme Court Justice Antonin Scalia has passed away, stories about his true greatness are coming out. The man’s opinions might have been firm, uncompromising, even biting — but his character and heart were surprisingly kind and gracious.

Jeffrey Tucker, director of digital development at the Foundation for Economic Education and “chief liberty officer” at the startup Liberty.me, decided to break silence on a personal story involving Scalia. After church one day, Scalia stayed late to pray, and so did a woman with “lashing sores on her face and hands…open sores.” Tucker recalls “there was some disease, and not just physically. She behaved strangely, a troubled person that you meet in large cities and quickly walk away from.”

When the woman approached Scalia, he didn’t back away, but took her hands and listened to her story.

He held her face next to his, and she talked beneath her tears that were now streaming down his suit. He didn’t flinch. He didn’t try to get away. He just held her while she spoke. This lasted for perhaps more than 5 minutes. He closed his eyes while she she spoke, gripping her back with his hand.

He didn’t recoil. He stood there with conviction. And love.

Tucker kept mum about this story, because “charity is simply a form of love, and genuine love does not seek out public recognition.” Tucker, an outspoken libertarian, said this moment touched him, and proved that power does not corrupt all men. “What I saw that day was the rare exception. Power did not corrupt this man. He remained true to himself and true to his principles.”

Another story came from the opposite side of the aisle. David Axelrod, CNN’s senior political commentator and former senior adviser to President Obama and chief strategist for the 2008 and 2012 Obama campaigns, recalled a surprising request from Justice Scalia. When Justice David Souter retired from the Supreme Court, Scalia supported an unlikely choice — Elena Kagan.

With the untimely death of Antonin Scalia Saturday, President Barack Obama has been handed the opportunity of a lifetime to tilt the Supreme Court to the left for decades to come. It’s also given Democrats an issue to demagogue from now until election day and beyond.

About an hour after Scalia’s death was confirmed, Senate Majority Leader Mitch McConnell “threw down the gauntlet,” announcing that the Senate would not be confirming a replacement for him until after the 2016 election, a move Politico called, “an historic rebuke of President Obama’s authority and an extraordinary challenge to the practice of considering each nominee on his or her individual merits.” But there is nothing “historic” or “extraordinary” about challenging “the practice of considering each nominee on his or her individual merits.” Democrats have been blocking judicial nominees based on ideological grounds rather than their “individual merits” for decades now.

Regardless, the president wasted no time in lecturing the Senate about its “responsibility” to give his nominee “a fair hearing and a timely vote.”

“These are responsibilities that I take seriously, as should everyone,” Obama intoned. “They’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our Founders envisioned.”

Hillary Clinton issued her own statement in support of Obama on Saturday evening.

“Let me just make one point,” Clinton said, whipping up the crowd at the state Democratic Party event. “Barack Obama is president of the United States until Jan. 20, 2017. That is a fact, my friends, whether the Republicans like it or not.”

Last week, Somali immigrant Mohamed Barry attacked with a machete patrons at the Nazareth restaurant in Columbus, Ohio. While authorities initially said they believed that Barry chose the restaurant randomly for a “lone wolf” attack, it now seems likely that the restaurant was targeted because the owner, Hany Baransi, is from Israel, and proudly displayed an Israeli flag in his window. According to Baransi, Barry asked a server a half-hour before the attack where the owner was from, and she confirmed that Baransi was from Israel.

The Tower has an exclusive interview with Baransi, a Christian from Haifa.

When asked whether he would consider removing the Israeli flag seen from his restaurant’s entryway as a precaution, Baransi swiftly rejected the idea.

“Actually I have another flag, and I am going to get a bigger flag, and I am going to get a Star of David necklace and put it on my chest, and I am going to get a tattoo,” he declared. “Honest to God, I am not kidding. They don’t scare me. We are Israelis. We are Israelis. We are resilient, we fight back.”

“We are used to these bastards,” he added. “We are used to these kinds of attacks, that they hate us just for what we are. They don’t know us, they don’t know anything about us, and they do that. You know, I don’t care if I was an Arab or not, because I am an Israeli, and if you don’t like Israelis you don’t like me.”

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. His latest book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law, was published in November.

In October 2013, a reporter asked Justice Antonin Scalia what he thought about the government shutdown. The gregarious justice replied, “I have a deal with the Congress. I leave them alone. They leave me alone.” He was exactly right. The monastic Supreme Court is formally isolated from the political process in all respects, but one — the appointment process. Long before they enter the marble palace, judicial nominees must run a political gauntlet that the Constitution itself has erected. The president has the duty to appoint officials — he “shall nominate . . . judges of the Supreme Court.” But the executive has this power only “by and with the Advice and Consent of the Senate.” Critically, the Senate is under no obligation to give the authority to the president.

This disjunction — the president shall nominate, but the Senate does not have to confirm — activates the very sort of structural bulwarks that the Framers hardwired into the Constitution. The Supreme Court’s unanimous 2014 decision in National Labor Relations Board v. Noel Canning reaffirmed this foundational lesson: When there is inter-branch disagreement that cannot be resolved through the political process, no nominee can be confirmed. Justice Scalia’s prescient concurring opinion in that case reminds us that senatorial refusal to confirm is not an unforeseen flaw but an intentionally designed feature of the Constitution. This is true even where it frustrates the orderly functioning of the federal government.

The case began in 2011 when Senate Republicans blocked a vote on President Obama’s nominees to the National Labor Relations Board. Without new appointees, the NLRB would lose its quorum and its ability to issue decisions. Faced with a political problem that called for a political solution, the president turned to an unconstitutional shortcut: Although the Senate had not gone on recess, Obama acted as if it had. During a 72-hour window between pro forma sessions on January 3 and January 6, 2012, the president deemed the Senate in recess and made three appointments to the NLRB.

The Supreme Court unanimously rejected the president’s legal defense of his action and found that the recess appointments were unconstitutional. But all nine justices went even further than that, specifically refuting the president’s argument that gridlock justified his breach of the separation of powers. During oral arguments, Solicitor General Donald H. Verrilli, the administration’s top lawyer, argued that the president’s decision to disregard the pro forma sessions was justified as a “safety valve” in response to “congressional intransigence.” If the president did not make the recess appointees, “the NLRB was going to go dark,” Verrilli said. “It was going to lose its quorum.”

There’s talk of Obama making a recess appointment to the Supreme Court if the Senate doesn’t act. Here though is what Justice Scalia thought of Obama’s abuse of recess appointments on the NLRB.

And as usual, he didn’t mince words.

“The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Justice Scalia wrote.

“What does all this amount to? In short: Intra-session recess appointments were virtually unheard of for the first 130 years of the Republic, were deemed unconstitutional by the first Attorney General to address them, were not openly defended by the Executive until 1921, were not made in significant numbers until after World War II, and have been repeatedly criticized as unconstitutional by Senators of both parties.”

“Moreover, the majority’s insistence that the Senate gainsay an executive practice “as a body” in order to prevent the Executive from acquiring power by adverse possession, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress.”

“In 1792, Attorney General Edmund Randolph, who had been a leading member of the Constitutional Convention, provided the Executive Branch’s first formal interpretation of the Clause. He advised President Washington that the Constitution did not authorize a recess appointment to fill the office of Chief Coiner of the United States Mint, which had been created by Congress on April 2, 1792, during the Senate’s session.”

“A statute passed by the First Congress authorized the President to appoint customs inspectors “with the advice and consent of the Senate” and provided that “if the appointment . . . shall not be made during the present session of Congress, the President . . . is hereby empowered to make such appointments during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” That authorization would have been superfluous if the Recess Appointments Clause had been understood to apply to pre-existing vacancies.”

“More fundamentally, Wirt and the majority are mistaken to say that the Constitution’s “ ‘substantial purpose’ ” is to “ ‘keep . . . offices filled.’ ”. The Constitution is not a road map for maximally efficient government, but a system of “carefully crafted restraints” designed to “protect the people from the improvident exercise of power.”

“There are many circumstances other than a vacancy that can produce similar inconveniences if they arise late in the session: For example, a natural disaster might occur to which the Executive cannot respond effectively without a supplemental appropriation. But in those circumstances, the Constitution would not permit the President to appropriate funds himself. Congress must either anticipate such eventualities or be prepared to be haled back into session. The troublesome need to do so is not a bug to be fixed by this Court, but a calculated feature of the constitutional framework. As we have recognized, while the Constitution’s government-structuring provisions can seem “clumsy” and “inefficient,” they reflect “hard choices . . . consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.”

Even in death, he always had the last word. As debate over a possible recess appointment to the Supreme Court by Obama continues, Justice Antonin Scalia had already made the case against it.

“The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents against future Senates,” Justice Scalia wrote in his usual unsparing language in NLRB v. Noel Canning.

And, as always, he took the side of the Constitution over everything else indicting the court for casting “aside the plain, original meaning of the constitutional text in deference to late-arising historical practices”. In clear and forceful language, he warned that “the Constitution’s core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights” in maintaining “the “enduring structure” of constitutional government”.

To Justice Scalia, liberty meant limiting the powers of government by maintaining the Constitution. A recess appointment, the topic revived by his passing, is as grave a threat to liberty as a violation of the First Amendment. He was convinced that government breaking its constitutional chains was the true threat to liberty. Attacks on the First or Second Amendment were symptoms of that larger problem.

Often outnumbered, but never outwitted, Justice Scalia saw government as a monster that the Founders had chained with manacles made of words. His task was reforging them with his voice and pen.

Leftist judges and lawyers love to style themselves as defenders of civil rights, but their idea of civil rights is providing unlimited power to government. Justice Scalia was an actual believer in civil rights. Unlike the activist leftist judges to whom the law is merely a means to a leftist end, dressing up their usurpation of power under the mocking name of “Living Constitution”, he was an Originalist who truly fought for civil rights every time he fought for the truth of the word of the law over the power of men.

Mr. McConnell, a law professor and the director of the Constitutional Law Center at Stanford Law School, is a senior fellow at the Hoover Institution.
Antonin Scalia, who died Saturday at age 79, was the most influential Supreme Court justice of the past 30 years. Not because he had the votes. He was influential because he had a clear, consistent, persuasive idea of how to interpret the Constitution: It means what it says; it means what those who enacted it meant to enact.

And Justice Scalia was influential because he wrote opinions with verve and good sense, in prose that any American could read and understand. He was the best writer the Supreme Court has ever known—and with justices like John Marshall, Oliver Wendell Holmes and Robert Jackson, that is saying a lot. He was the court’s most withering logician. He showed us what a real judge can be, even on that most political court.

When Justice Scalia arrived at the Supreme Court in 1986, its jurisprudence had become sloppy, results-driven, plagued with fuzzy three-part tests and fuzzier four-part tests, all of them concocted by his predecessors with little basis in constitutional text. Today, the entire court—even the liberal justices—have adopted Justice Scalia’s style: close attention to text, awareness of history, analytical rigor. The Supreme Court has not announced an impressionistic multipart “test” in years. CONTINUE READING AT THE SITE