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Give the American People A Say In Picking Scalia’s Replacement

Washington, March 24, 2016 | comments
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Almost as soon as the public learned about the unfortunate passing of Supreme Court Justice Antonin Scalia, the political debate over his successor began.  Sadly, too little time was spent recognizing his importance to this country.

But make no mistake, Antonin Scalia was a legal giant, who fundamentally changed the way we approach constitutional law.  He helped restore wisdom, sanity and reason to a Supreme Court that had been dominated for years by activist justices with expansive views of constitutional power.  His unparalleled intellect will be sorely missed on the Court.

The question we now face is how to replace a judicial icon. 

Given his importance, I think it’s critical to allow the American people to have their say.  That’s why I agree with those in the Senate who argue the next President should pick Justice Scalia’s replacement.

Of course, President Obama has the right to make a nomination.  But, unlike what many pundits would have you believe, the Senate doesn’t have to approve that nominee.  In fact, as a Senator, Vice President Joe Biden said in 1992 that, if a vacancy on the Court should occur, the Senate should “seriously consider” postponing confirmation hearings until after the November Presidential election.  And in 2006, then-Senator Obama attempted to block a confirmation vote on Justice Samuel Alito through a filibuster.

Well, that was then, this is now.  And to no one’s surprise, President Obama is now calling “unprecedented” the very same tactics that Senator Biden advocated and Senator Obama actually employed.  Once again, the rules don’t apply to the Obama Administration. 

While the President presents his nominee, Judge Merrick Garland, as a moderate, a closer examination reveals a far more liberal record.  His position on abortion is murky at best, and he has shown hostility towards the Second Amendment, having upheld the D.C. gun ban.

But it’s on economic issues where his real liberal positions stand out.  Judge Garland has repeatedly sided with the federal government over the American people.  In cases involving the EPA, National Labor Relations Board, and Department of Health and Human Services, Judge Garland has routinely upheld federal government action while rejecting challenges brought by the private sector.

He’s also shown a tendency towards judicial activism, suggesting that the Commerce Clause grants broad regulatory powers to the federal government.  Judge Garland’s interpretation would authorize extensive federal interference with intrastate commerce (an area the Constitution clearly reserves to the states), and closely mirrors a “legal” theory used by the Obama Administration to justify Obamacare.

As Chairman of the House Small Business Committee, I’ve heard many small businesses express grave concerns about Judge Garland’s hostility towards them.  In fact, the National Federation of Independent Businesses, the nation’s largest small business advocate, has for the first time in its 73-year existence taken a position on a Supreme Court nominee.  Not surprisingly, that position is in opposition to Judge Garland’s nomination.

Ultimately, on the Supreme Court, Judge Garland would likely be an ally of big government and the regulatory state.  And that’s something that should worry not just small business owners, but the American people as a whole.




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