Scalia Tragedy Provides Opportunity for Redemption

scl2As I turned on the television Saturday night, February 13th, I was stunned to discover that Justice Antonin Scalia, a man for whom I hold the greatest reverence, had passed away unexpectedly earlier that day.

Scalia, for me, represented the epitome of constitutionality and jurisprudence according to the rule of law. Scalia was an Originalist, who ought to be a prototype for all jurists. I loved Scalia because he did not suffer foolishness gladly, and denounced attempts to legally codify positive law based on the quest for personal autonomy. What some called ‘progress’ Scalia called out as cultural regression. Scalia was a pillar of common sense, rational thought and constitutional fidelity. Scalia would not succumb to the temptation of allowing law to be servant or emotionalism or shifting social consensus. He knew Law is not about the latest fashion. Part of the reason Scalia would not cave in is because he understood the historical and inextricable relationship between law and theology. And of course that is the primary reason he was despised as well. Today’s liberal secularist has made historical revisionism into salutary enterprise.

15 years ago I was asked to eulogize my best friend and mentor, who died tragically at the youthful age of 46. One of the points I made was that my friend would have expected us all to find the silver lining in this tragedy; to glean from this experience a modicum of positive inspiration. To illustrate this point, I gave a paraphrase of a couple lines from the final stanza of a poem entitled “Don’t Quit,” which my friend had presented to me early in our friendship.

Success is failure turned inside out –
The silver tint of the clouds of doubt,
And you never can tell how close you are –
It may be near when it seems afar;
So stick to the fight when you’re hardest hit –
It’s when things seem worst that you mustn’t quit.

In such a tragic event, “The silver tint of the clouds of doubt?”

So what do the two observations have in common you ask? 15 years ago, I briefly asked myself, “Well, what I do now?” The point being that after losing the influence of such a friend, it left me somewhat disillusioned and doubtful about the future. That lasted until I remembered the numerous times he offered encouragement about tough times. At that point I recognized that he had in effect passed the torch to me, and that it was my turn to take up his mantle and stand in the gaps.

While not quite analogous to the situation with the late Justice Scalia, in principle the same situation applies. It is easy to be discouraged when we consider what might lie ahead of us. The composition of the SCOTUS will lurch left without Scalia, and some recent decisions didn’t bode well for conservatives even with him in the mix. It’s easy to suppose that the conservative movement will be in a world of hurt, as more judicial activism will invalidate many things that took much effort to legislate. It’s hard to be positive about the future.

Undoubtedly, the president will try to appoint his new candidate as quickly as possible. The democrats will attempt to put those who want to delay the nomination in a poor political position. In fact, this is liable to be an all out rhetorical war, with each side pointing to past hypocrisy of their opposition. A classic Alinski tactic was to make the opponent live up to his standard, while not allowing him to make you live up to any standard at all. Liberals have perfected this technique while avoiding recrimination.

But here is where the opportunity arises as well. The importance judicial philosophy of SCOTUS nominations should be a leading issue of republican presidential candidates in the debates and on the campaign stump. If we abided by the judicial guidelines Thomas Jefferson offered, half the Justices on the SCOTUS would be disqualified.

“On every question of construction, carry ourselves back to a time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

There exists the opportunity to again inform the public about the necessity and importance of stressing originalism in the judicial process. In addition, it allows conservatives another opportunity to regain approval and support from those who voted them in, but have grown disenchanted with their representatives’ political lethargy.

Let’s face it, the conservative movement is in an awfully precarious position if the death of one aging iconic justice can derail the whole movement. If so, we’ve been staking on paper thin ice for a long time, or expecting that Scalia would be on the court for eternity. This is a great opportunity for conservatives to circle the wagons like never before, and say to liberals that you come up to this line, but no further.

But what about the lack of civility and protocol arguments that will be the constructs of the liberal talking points? All things being equal, I believe in fighting fair; no scratching, biting or kicking allowed. However, if you are strangling me, I’ll likely bite your arm if I think it’s the only way break your choke hold.

Considering what this present administration has wrought, does the urgency of the times demand that the ends justify the means?

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