Scalia's Lessons For Trumpkins

Among this election season’s oddities was the dust-up between Pope Francis and Donald Trump. After departing Mexico, the Pontiff appeared to criticize Trump in an interview, suggesting that building walls – not bridges – “is not Christian.”

Calling the comment “disgraceful,” the presidential front-runner and insulter-in-chief compelled the Vatican to Think Again before retreating. Meanwhile, comedians joked that the perceived papal putdown would cause church attendance to fall and Trump’s poll numbers to surge.

Indeed, by crossing swords with the Pontiff, Trump burnished his image as a fearless fighter, a trait his voters prize. Unfazed by his incoherence, lack of policy specifics or controversies, Trump supporters, like columnist Jim Nolte, are tired of losing and want “someone who will do whatever it takes to win.”

Buoying Trump is Americans’ sense of powerlessness and insecurity. Consider these controversial policies, imposed on disapproving majorities using extra-constitutional means: the Iran deal; the irresponsible and never-debated Omnibus budget; Obamacare; trade promotion; and executive actions and sanctuary-city policies that nullify immigration laws.

But for Trumpkins, “Making America Great Again” isn’t about restoring government of, by and for the people. It’s about elevating their own Julius Caesar to make deals with a ruling class that runs government like a spoil system – of special interests, by unelected bureaucrats and for political elites.

Apparently, Trumpkins want a warrior who’ll “bork” political opponents. The angry verb “to bork” means to discredit by whatever methods necessary. It was coined after the character assassination of eminent jurist Robert Bork, killing his 1987 Supreme Court nomination the year after recently deceased Justice Antonin Scalia won a 98-0 Senate confirmation.

Anti-Bork activist Ann Lewis later explained the unprecedented smear campaign: there’d be a “deep and thoughtful discussion about the Constitution, and then we would lose.” Hence, Kennedy’s fabrication that in Bork’s America, “women would be forced into back-alley abortions, blacks would sit at segregated lunch counters.”

Writing 24 years later, New York Times columnist Joe Nocera lamented the nomination battle’s “essential unfairness,” noting “the line from Bork to today’s ugly politics is a straight one.” Whatever one thinks about Bork’s views, Nocera argued, “they cannot be fairly characterized as extreme…. Rarely has a failed nominee had the pedigree – and intellectual firepower – of Bork.”

That Bork was Scalia’s ideological and intellectual equal, but was rejected shortly after Scalia’s unanimous approval, speaks to how politicized the theoretically independent judiciary has become.  Consider that it was President Franklin Roosevelt’s fellow Democrats who foiled his plan to pack the Supreme Court.

Thomas Jefferson warned that giving “judges the right to decide what laws are constitutional and what not… would make the Judiciary a despotic branch." Now, having morphed from “the least dangerous branch” into an unelected super-legislature of nine philosopher kings with lifetime appointments, it’s not surprising Supreme Court nominations are hotly contested – and fraught with hypocrisy.

Though waxing indignant over Republican refusals to consider a lame-duck president’s Supreme Court nomination during this election year, Sens. Harry Reid, Chuck Schumer and Joe Biden favored obstructing Republican judicial nominees.

In 1992, Biden, then the chairman of the Senate Judiciary Committee, proclaimed, “action on a Supreme Court nomination must be put off until after the election campaign is over,” insisting the president not nominate anyone. And in 2006, then-Sen. Barack Obama voted to block an up-or-down vote on Justice Samuel Alito’s nomination.

Ironically, an activist and politicized judiciary is what Scalia wanted to roll back, favoring the founders’ original intent: separation of powers, checks, and an independent judiciary with limited authority to resolve legal disputes by applying – not writing – the law. Other issues should be decided democratically – at the ballot box or by representatives accountable to the people.

By short-circuiting the democratic process for resolving emotionally charged issues, Scalia believed the Court was violating “a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Feeling voiceless and powerless in an America that’s migrated away from it’s founding purpose – the democratic self-governance of a free people – many Trumpkins want a strong-arm “borker” to wield power on their behalf. But do they really want a vengeful president using the IRS, NSA, FBI and CIA to target and punish critics?

As Scalia argued while pointing to unfree nations that have charters of rights, “It isn’t the Bill of Rights that produces freedom; it’s the structure of government that prevents anybody from seizing all the power.”

Essentially, the founders used constitutional walls to separate and check power so that diverse people with differing beliefs would be free to build bridges of mutual respect and tolerance, forging an open and decent society. The Supreme Court’s unlikely “best buddies” – rivals Scalia and Ruth Bader Ginsburg – built a remarkable bridge, a lesson for Pope Francis, Trump and Trumpkins.

Think Again – Isn’t the best way to Make America Great Again to elect a president who’ll adhere to America’s great constitution?