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Justice comes rolling up like a mighty stream of something, not sure where that's going, actually.

I saw something recently saying that the tradition of refusing to criticize the recently deceased is, like all good death-traditions, about the living. That decent pause is for our benefit, not for the dead guy. It’s a good idea, this way of thinking goes, to take a moment and think about life, and death, and mortality, as something that links us all, makes us more like each other than all our differences. And implied in that, I think, is the notion that us living folk will have plenty of time to tell the truth about the one who no longer has a chance to talk back, so we can afford some magnanimity.

So. Justice Scalia is dead, and that’s all I’m going to say about Justice Scalia at this point. The rest of this note will be about the Other Party, its leaders and legislators and Presidential candidates, none of whom are at this time entirely dead, so far as I know. Let’s keep that in mind, shall we?

It seems to me, I have to say, that if a Senator from the Other Party cared very strongly about the legal legacy of Antonino Scalia—the limitations of federal regulation over state action and inaction; the narrowing of standing to sue in state and federal courts; the use of affirmative action to redress racial injustice; the ability of localities to legislate community standards of sexual behavior including reproductive health and abortion; the primacy of traditional religious custom; the dangers of collective bargaining and class-action suits; the protection of individual rights from actions intended to provide collective benefit—the right thing to do is to wait for Our Only President to nominate a candidate and then refuse to confirm that candidate on that basis.

That seems like the right thing to do both constitutionally and (crucially in our Madisonian system) electorally. I mean, the whole point of the Madisonian system is that our legislators will worry about re-election (or election to a higher post) and our system should harness that ambition to make the government work. Electoral concerns are not supposed to be lesser than constitutional concerns, they are supposed to support them. They often do, and I don’t really understand why they don’t in this case.

The Senate of course has the perfect right to refuse to confirm any nominee that the President puts forward to them, and in this case it is perfectly reasonable for them to reject any candidate that doesn’t meet their standards. I don’t think anybody has any expectation that Our Only President will nominate anyone who does meet those standards, so I fully expect that the seat will remain empty for a year, even if it completely stymies the Conservative movement’s momentum of judicial victories. Eventually, either the Other Party will win office, thus (legitimately, I’m afraid) getting to further their agenda even further, or they will lose the Senate Majority, and the momentum will go the other way. Democracy wins, in its slow and bizarre way.

The thing I don’t understand is their leaders immediately making public statements that they will not consider any nominee. What is to be gained by that? Opposing all potential nominees seems much more difficult to defend than opposing any one single nominee, who will, after all, be a flawed human with a history vulnerable to traducing. I can only guess that the Senators and other leaders feel themselves more vulnerable to challenges from people who agree with them than those who disagree with them. Challenges from the right based on charges of squishiness and RINO betrayal; attacks on the radio, TV and internet that won’t wait a week or even a day. The accusation, not that the Senator might eventually vote to confirm a Justice unacceptable to Conservatives, but that the Senator might not be sufficiently vitriolic and contemptuous in opposition. I can’t read their minds. I would like to know what they are thinking, but that’s not going to happen. I can only say what makes sense to me.

I’ll end on a positive note, though. I do think that in the end, this will come down to Americans governing themselves. Even at the level of Supreme Court Justices, who are not elected but appointed, and can serve for decades without deferring to anyone—as it should be—these decisions come down, in the end, to ordinary people making ordinary political decisions. People voting. People complaining to their legislators, and supporting or opposing their campaigns. People banding together to march or raise money or hire a lobbyist. People who care about the issue making their voices heard over those indifferent. People in Parties choosing nominees. People writing blogs.

I don’t mean to sound optimistic. I’m not. I think it will take a long time to get to governing ourselves in accordance with policies closer to my preferences and priorities, or to yours. We might move further away from those, not closer. But we’ll do it ourselves, as a country. It might seem like we’re waiting for an aristocracy to choose an aristocrat to wear the funny dress and decide on our lives for us, powerless people at the whim of the rich and connected. But we will, in our millions, vote. And we’ll make changes. Maybe not swift changes, and hell, maybe not good changes. But it will be on us to make them. And as we work through that responsibility, maybe we slowly create a people capable of self-government.

Tolerabimus quod tolerare debemus,