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Nobody on Earth could make a good enough Supreme Court justice for Republicans

The replacement for Justice Antonin Scalia, who was found dead Saturday in Texas, is already becoming a big, bitterly disputed political issue in the U.S. presidential election, exactly what you'd think such an appointment should not be.

They are pre-denouncing Barack Obama for doing his job in promising a replacement for Scalia

The U.S. Supreme Court: seated left to right: Justice Clarence Thomas, Justice Antonin Scalia, Chief Justice John G. Roberts, Justice Anthony M. Kennedy, Justice Ruth Bader Ginsburg. Standing left to right: Justice Sonia Sotomayor, Justice Stephen G. Breyer, Justice Samuel A. Alito, Jr., Justice Elena Kagan. ( Steve Petteway/ Supreme Court of the United States)

If, as Christians believe, Jesus Christ someday reappears, strolling down from Bethany toward Jerusalem's Golden Gate, conservative Americans would probably hail him as a Republican, but on reflection, not really fit to serve on the Supreme Court.

He might not be enthusiastic enough about guns, his ideas on wealth redistribution are just plain socialism, he likely wouldn't be keen on injecting criminals with lethal chemicals, he'd no doubt urge clemency for all the millions of illegal immigrants doing America's scut work and, as a Jew, he might even have a compromise view of abortion.

Sure, he'd allow prayer in schools, but really, do conservatives nowadays want a compromise candidate for Supreme Court justice?

No, they want to replace the late Justice Antonin Scalia with a genetic match of Antonin Scalia, someone who will roar conservative, scathing dissents, and even better, author decisions like DC vs Heller, which declared that the constitution guarantees the literal right to bear arms.

Mind you, had it been Ruth Bader Ginsburg or Elena Kagan or Sonia Sotomayor or Stephen Breyer who'd passed away over the weekend, left-wing advocacy groups across America would already be out with the bullhorns at full blast: "WHAT DO WE WANT? A SOCIAL JUSTICE! WHEN DO WE WANT HER? NOW!"

As a matter of fact, the replacement of Justice Scalia, who was found dead Saturday at a hunting resort in Texas, is already becoming a big, bitterly disputed political issue in the presidential election, exactly what you'd think such an appointment should not be.

It's all about the binary

But that is America: nothing, not even a tribunal at the pinnacle of a system that is supposed to dispense blind, apolitical justice, is exempt from the left/right, Democrat/Republican, conservative/liberal binary that suffuses every aspect of the nation's life.
Antonin Scalia is seen here on July 7, 1986, as a nominee to serve on the Supreme Court, next to U.S. President Ronald Reagan in the White House Oval Office. (Bill Fitz-Patrick/White House/Ronald Reagan Library/Reuters)

The court reliably splits 4-4 along partisan lines, with the right-leaning Justice Anthony Kennedy often casting the deciding vote one way or the other, which makes Kennedy a man of great power, and also makes him look like the only independent thinker on the bench.

In other democracies, supreme court judges are more apt to have minds of their own; several of the decisions that struck down Stephen Harper's unconstitutional initiatives were unanimous, joined even by judges appointed by Harper.

Frank Iacobucci, a former member of the Canadian Supremes, once told me that during his 13 years on the bench, "I had no idea what any of my colleagues' political background and preferences were.

"Their politics and political views," he said, "were not evident in their work. If they were there, they were so subtle that I missed them."

Canadians like our Supremes

As a result, polls have suggested the Canadian Supreme Court enjoys the approval of a strong majority of Canadians; something like 70 per cent.

In the U.S., support for the court is far lower. Down beneath 50 per cent, according to polls. People assume, and with reason, that their high justices are merely well-educated ideologues, a political body not really much different from Congress.

The Heller decision, for example, was written by Scalia for the majority, which included all the conservative judges: Chief Justice John Roberts, Sam Alito, Clarence Thomas and Kennedy.

Opposed were the liberals: Ginsburg, Breyer, John Paul Stevens, and David Souter (Souter, now retired, was a convert, appointed by George Bush Sr., who went on to become one of the court's most reliable liberals, to the disgust of Republicans).

Citizens United vs FEC, the decision that shattered limits on election campaign spending, broke down precisely the same way: 4-4, Kennedy breaking the tie.

Now, to be fair, there have been exceptions to ideological solidarity, and when it's happened, it's been conservative justices who've broken ranks.

Most famously, Chief Justice Roberts declared Obamacare constitutional, opposed by his fellow conservatives.

There was also the defection of Souter, Kennedy's constant swing voting, and Sandra Day O'Connor's votes upholding affirmative action and the right to abortion.

The court's liberals, by contrast, have maintained an absolutely consistent ideological wall; not a sliver of daylight between them on big partisan issues.

 Pre-denouncing Obama

Knowing that, Republicans immediately began pre-denouncing Obama over the weekend for doing his job. The White House says it will nominate a successor for Scalia; Republicans are demanding that he leave the seat vacant for nearly a year and allow his successor to make the choice.

They are already promising to block any Obama nominee in the Senate, which they have the numbers to do.

So Obama, in the words of one analyst, can either try to find a justice "moderate enough" to appeal to enough Republicans to ensure Senate confirmation, or deliberately appoint a liberal, guaranteeing rejection, which can then be used to rouse progressive activists. Turn the appointment into a political weapon, in other words.

In any event, the politicization of the high court has reached completion in the past decade or so.

Nobody even pretends anymore

Nobody is even pretending anymore, as George W. Bush once did, that there is no "litmus test" for Supreme Court judges, that they are just all good, impartial lawyers.

Sen. Bernie Sanders, Hillary Clinton's main rival for the Democratic presidential nomination, has come right out and said it: He would only nominate judges who would repeal the Citizens United decision.

Sen. Ted Cruz, the far-right Republican who once clerked for a Supreme Court justice, has made the same vow, just the other way around.

Incidentally, Scalia was nominated by Ronald Reagan in 1986, and Democrats and Republicans in the Senate joined to confirm him unanimously, 98-0.

Reagan also proceeded with a Supreme Court nomination during his last year in office, which Republicans are now saying Obama should not do.

He nominated Anthony Kennedy, who was also confirmed, unanimously.

But that was a long time ago, in an America far, far away.

About the Author

Neil Macdonald

Opinion Columnist

Neil Macdonald is an opinion columnist for CBC News, based in Ottawa. Prior to that he was the CBC's Washington correspondent for 12 years, and before that he spent five years reporting from the Middle East. He also had a previous career in newspapers, and speaks English and French fluently, and some Arabic.

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