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Let me just reiterate. We’re gonna get into this in detail, by the way. I’m gonna share with you some of the comments that are out there. We’ll discuss all the different analysis about Obama and the replacement for Justice Scalia, but it’s really gonna come down to the Republicans, and they’re saying are the right things right now.

I’ve noticed McConnell said that president “should not” make an appointment during the final year. We’ve got Schumer and the Democrat Party hypocrisy where they have advocated exactly what the Republicans advocate for today, but they’re acting like nobody remembers them saying it and so forth. I’ll get into all of that. But McConnell did not say “would.” He said “should.” He did not say, “No way, not ever, no how is Obama gonna get a nominee.” He said he “shouldn’t.” There’s wiggle room there.


RUSH: This is what presidential elections are all about, Supreme Court justices. This is going to add a new focus to the presidential campaign. Even though Supreme Court nominations already are an integral part, this is going to hyperfocus it. It’s going to eliminate it even more greatly. The reason that that’s important is because there is yet another opportunity, and there have been many of them, and this is a great opportunity for the Republican Party once again to contrast itself with the Democrats. Who would the Democrats pick, what kind of justices, and what does it lead to, versus the justices that conservatives would pick. So it’s gonna be a big deal.

Now, let’s go to the McConnell’s statement. “Senate Majority Leader Mitch McConnell on Saturday signaled there would be no vote on any appointment picked by President Obama to replace deceased Justice Antonin Scalia — setting the stage for a dramatic political showdown in Washington that will likely result in gridlock for the remainder of the year.” McConnell is not planning on bringing to the floor for a vote any nominee Obama selects to succeed Scalia, according to a Senate GOP aide.

Now, what is another word for “gridlock” here? Another word for “gridlock” is “government shutdown.” The magic words, are they not? How many times have you heard a Republican elected official, or even a member of the Republican media commentariat, wring their hands and lament that we cannot have another government shutdown. We cannot be held responsible for it. If there’s a government shutdown, we are going to get blamed for it, and we will lose elections, that people like their government, they want their government open and operating. They want their government cutting checks. They want their government providing benefits, unemployment, welfare, you name it.

And if I’ve heard this once, I’ve heard it a gazillion times, Republicans say, “We can’t do this. We cannot do anything that will shut down the government,” which has always meant we can’t oppose Obama. We can’t stop Obama on the budget or anything else because the Democrats then start wailing about a government shutdown, and the Republicans can’t deal with it.

So, anticipating — and believe me here, folks, when I tell you, there is no compromise candidate, there is no meeting halfway. That’s not who Obama is. It’s not who the Democrats are. And a Supreme Court justice is the place, if there’s one place above all where there will be no compromise, it’s the Supreme Court and a seat thereupon. There will be no compromise. Obama is going to find he’s got a chance to replace a textualist originalist.

Antonin Scalia embodied the absolute worst of a Supreme Court justice as far as Obama and the left are concerned. Of all the so-called conservative justices, Scalia was satanic, because Scalia was formidable. Scalia could not be defeated intellectually. Scalia could not be trumped in any way, shape, manner, or form, other than by votes. But nobody would outanalyze him, nobody would outsmart him because he believed in things the left doesn’t.

They don’t believe in the original intent and finding it. They don’t believe in looking at the text of the Constitution and combining that with original intent. It’s kind of a mistake to say that Scalia was a strict constructionist. He was not. He was a textualist. And here’s the difference, as he explained it. He said a strict constructionist would look at the First Amendment and say it only applied to the written word, ’cause at the time the Constitution was written, that’s all there was. There wasn’t telephone. There wasn’t radio or TV. There was nothing on the air. All there was was spoken and written.

And if you interpret the Constitution as a strict constructionist, as it was constructed with original intent, then you’d have to say that there is no free speech unless something’s written. And he said that’s not at all what they meant. You have to be able to interpret the text, the textual content and so forth. So he considered himself to be a originalist and a textualist — his word. And you have to understand what they meant. And the only way you can understand what they meant was to study them, the founders who wrote it. And what they meant with the First Amendment was that government would not stand in the way of anything anybody said anywhere, anytime, anyhow, except, you know, “fire” in a crowded theater.

But as a philosophical and legal matter, it did not mean only what was written or only what was said, because their view was far more inclusive than that. It was philosophical. Free speech in a constitutional republic is fundamental. There can be no abridgement of it, period. So the point here is that as far as Obama and everybody else on the left is concerned, Scalia was the absolute worst thing they had to deal with. The fact that Scalia is now gone, to replace Scalia with a moderate, with somebody that might go either way just to satisfy, just to get a justice on the court, no way. Obama’s gonna do whatever he has to, using any trick he’s got, and he’s gonna be guided by his years of experience with the Republicans pretty much laying down. He’s gonna go for as powerful a leftist justice as he can get. This is it. This is where you overturn the Second Amendment, folks. This is where you use the government to get rid of the parts of the Constitution holding you back. This is it. They’re not gonna compromise on this just to get the court back to a capacity of nine. And that’s all anybody needs to know here.

You can overanalyze this from now until this is all done. But that’s gonna be Obama’s objective going in. And the Republicans’ objective had better be to stop it. And the Republicans had better realize they are fully within their constitutional rights and powers to stop it. There’s nothing in Article 2 that says the president is guaranteed to get his confirmation. There is nothing in there that says the Senate must fill the court up to nine. They can leave it at eight if they want to. Congress defines the courts. It’s there in the Constitution.

Now, the left and their voters don’t look at this like that at all. This is way, way above them. To them it’s simply a matter of fairness and equality. And the rules say there are nine, and the president gets to put on who he wants, and anybody that stands in the way needs to be destroyed, and the president gets what he wants. And anybody that doesn’t let the president have what he wants is in violation of something, and they’re gonna be targeted to be destroyed or what have you.

I guarantee you they’re salivating. Everywhere you could find in the deep, dark crevices of wherever they hang out, they’re salivating at the opportunity they’ve got here. And they are not going to squander it. And if Obama thinks that he can get what he wants by simply threatening a government shutdown? What if Obama and the Democrats threaten to shut down the government? Already the news stories are referring to “this will likely result in gridlock.” The debate over the next nominee and the confirmation fight will likely result in gridlock for the remainder of the year. That’s akin to a government shutdown.

If Obama goes out and says (imitating Obama), “These Republicans are standing in the way of every aspect of my agenda, not just this court fight, but they’re being obstructionist, and in fact they have shut down the government.” Will that cause panic to ensue? Well, it always does. I’m not predicting doom and gloom. I’m trying to alert everybody to this so that we can prepare for not falling for this.

Don’t fall for a government shutdown, GOP, again. And who cares if you get blamed. This is bigger than your feelings. It’s bigger than whether you get blamed or not. And, believe me, remember what McConnell said a week or two ago now, he said that we’re not going to stop the Obama agenda. This is before Justice Scalia passed away. He said we’re not gonna oppose the Obama agenda because that might be problematic for our Republican presidential nominee. It might make us and the party look like we can’t make Washington work, so they’re not gonna stop Obama. He made it plain.

Does that transfer to this? Well, not according to McConnell’s statement. McConnell’s statement is: “No vote on Scalia replacement under Obama.” But I need to find the exact — I thought I had it in this story but I don’t. He used the word “should.” Obama “should not,” not “would not.” Some people, “You’re over overanalyzing this.” I don’t think so. I’m just using intelligence guided by experience here, folks.


RUSH: Let me get some phone calls in on this, ’cause we are going to be hopscotching all over the place today, and I don’t want to put too much distance in something we’re talking about and calls on that subject. So we’ll start in St. Petersburg, Florida, with David. Great to have you on the program today, sir. Hello.

CALLER: Well, thank you, and mega dittos. And I would just say that this is the day that our founders planned for when they created a checks-and-balances system with divided government, where the Congress could say, “Our president has gone too far and we do not consent to what you are doing, especially since your actions are so thoroughly and routinely unconstitutional.” The citizens have elected a Senate to create that balance for this man who is off the chain.

RUSH: True, although just as a little side note, the Senate was not originally elected by the people. They were appointed. But you’re right. That evolved and changed over time. But again, I’m not trying to be pessimistic. Separation of powers and all that? You think it matters to Obama? This my point, folks. None of that matters. Separation of powers? You heard of executive orders? Executive actions? None of that matters. Now, he’s… (interruption) Well, Snerdley says, “The most he could do is a recess appointment and they’ll be gone when he is.”

He could do a recess appointment, but he’s said that he will not do a recess appointment. I don’t think he’s gonna try. Let me tell you something, folks. Everybody is worried about down the road later in the year with a presidential campaign or near the end of Obama this year. The recess appointment, that’s not the worry. The worry is right now, folks. I’m telling you, the concern is right now. That’s what I’m worried about. I’m not concerned what happens with a recess appointment down the road. We got…

We can’t put this off, can’t think that this is gonna be automatically backstopped successfully. I’m worried about what they’re plotting right now. And all of the… Look, I’ve got the stories like everybody else has. For example, right there: “Obama Filibustered Justice Alito, Voted Against Roberts.” We’ve got the audio sound bite of Senator Chuck Schumer and the story where he himself, back in 2007, said that George Bush should not have the right to nominate justices to the court in the last year of his presidential term.

And people said, “See, see? They’re hypocrites. They’re hypocrites!” Has that ever stopped ’em? Has that charge, the successful charge of hypocrisy ever changed one Democrat vote? Has anybody who ever supported Bill Clinton dropped Bill or Hillary Clinton because you pointed out how hypocritical the Clintons are? It doesn’t happen. It doesn’t work. It’s interesting and it may have some value, but it’s not gonna change the way Obama goes about this.

Pointing out what Chuck Schumer said back in 2007 and saying that the Democrats, to be consistent, ought to be saying that Obama shouldn’t be appointing justices? Are you kidding me? These are the people that blew up Senate and the filibuster in order to pack the DC circuit. They blew up years and years of Senate rules to get what they want. You think a charge of hypocrisy where everybody in the nation knows about it is gonna stop ’em? It never has.

It’s never caused the Democrats to lose one voter or public support from anybody in the media. What happens when you point out hypocrisy, what generally happens is that people applaud the Democrats for how successfully they get away with it, like they applaud Clinton for how successfully got away with lying day after day after day. So you go to Chuck Schumer and say, “Hey, Chuck, you’re being a little hypocritical. You think Obama should be able to appoint a justice right here, right now. But in 2007, you said Bush shouldn’t.”

“Different circumstance,” he’ll say. “The Iraq war, massively unpopular, massively unpopular president. The polls were in; the country hated George Bush. The country hated everything George Bush was doing. But Obama is beloved and Obama is still loved and adored and supported and so forth, and it’s not the same thing.” He’ll tell you he’s not being hypocrite, that he’s putting the country first.

And you’ll be left with, “Uh, what did he just say?” That’s what he’s gonna do. That’s what they’ll all do. They’re not gonna let hypocrisy trap ’em. You can point it out all day long. It’s not gonna be of any value whatsoever in this fight. Pointing out Democrat hypocrisy never helps. Republicans get hoisted on their own petard with it. That’s part of the double standard: Pointing out hypocrisy on the Republicans can nail them, but not the Democrats. That’s just the way it is.


RUSH: McConnell said, “[T]his vacancy should not be filled until we have a new president.” Now, maybe I’m making too much about this, but I would preferred “this vacancy will not be filled.” But we shall see.


RUSH: So on the Scalia thing, as far as the replacement battle, I just want to keep my powder dry and hold back and wait and follow this. Because I don’t think…

If you’re just joining us (and just to close the loop, here), I don’t think there’s gonna be any serious attempt by Obama to come to come up with a compromise candidate. Now, he’ll say he’s doing that. I’m not saying none of this won’t be said. I’m saying that he’s not going to seriously put somebody up for this seat that is not Saul Alinsky Jr. wearing some disguise. That’s what it’s going to be. It’s too big an opportunity. It isn’t gonna be somebody Obama’s not sure of. It isn’t gonna be somebody that Obama only likes half of or 75% of.

That’s not the way they operate.

They get all or nothing, and they keep coming back and coming back until they get it. But a Supreme Court nomination is it for life. You get one chance at it. You don’t appoint somebody that’s half of what you want or 60% of what you want and say, “I’ll get the rest on the next appointment.” And here’s another thing. Litmus tests. All these people say, “No, no, no!” Both parties say, “No! In selecting a nominee, I will not ask him what he’s going to do issue by issue.” The hell they won’t! Every potential nominee, one way or the other… Obama may not do it.

J. Christian Adams has explained how all this happens. For example, he told us in an interview at the Limbaugh Letter. I asked him, “How does Obama let Eric Holder know what he wants? It’d be too obvious to bring Holder up there and have a conversation. All this stuff gets logged. Well, theoretically it does.” And he laid out the procedure for the way I these things happen. But he also made the point that there’s not much Obama needs to tell Holder. That’s the point. There wasn’t much he needed to tell Lois Lerner.

You put people in there who don’t need a memo.

You put people in there who don’t need instructions.

You put people in there who are gonna do what you want because that’s who they are, and it’s gonna be the same thing here. And they’re not gonna go for 60 or 70% of it. And they will ask whoever it is, “When abortion comes up, what are you gonna do? When gun control comes up, what are you gonna do?” It may not be direct, and they may not even have to do that because they already know — if the nominee is already sitting on some circuit, district, appellate court somewhere else.

So they already know. But don’t believe this that there isn’t a litmus test.


RUSH: Back to the phones we go to Oldsmar, Florida. This is Ann. It’s great to have you on the EIB Network. Hi.

CALLER: Hi, Rush. Thank you very much for taking my call.

RUSH: You bet. It’s great to have you with us.

CALLER: (silence)

RUSH: Are you still there?


RUSH: Yeah, I know. Welcome. You’re on the air. It’s your big showbiz break.

CALLER: Thank you. I have two comments regarding the appointment of the judge. First of all, I don’t believe that our senators, and particularly our candidates, want to announce to everybody that they are going to filibuster. I think that’s a closed hand. They should do what they know is right but not advertise it. Right now, why ire the voters? We have the high ground in this election. Let’s keep it. Their response should be that they are going to do the right thing for the country, period. My other comment is, I do believe that senators ought to postpone their winter recess. They are the stewards of this country, and they need to stay in Washington to make sure that there are no more executive orders until the White House keys are turned over.

RUSH: Well, that… Wait now, just a second. That’s two things. I know you’re also headed down the line here on recess appointments. You can keep the Senate in session with the dog catcher in there. There’s any number of procedural ways to keep the Senate in session without keeping everybody in town. The Democrats have done it. Dingy Harry has shown in every which way possible how to bend, break, and shape the rules. Now, the Republicans didn’t do anything to stop him when he did it.

There’s no doubt that Dingy Harry will call McConnell on whatever maneuvers he tries to make. As to executive orders, that’s not gonna stop Obama. As long as the Senate can’t agree to anything, he could say (impression), “Well, you know what? There’s nothing going on there, and I told my voters if they don’t do it, I’m gonna do it. I’m gonna do it.” Why should he not? He has been promised that his agenda will not be opposed this year.

Don’t tell me you have forgotten that. Why, that was just a mere three weeks ago. Mitch McConnell was weighing in on the presidential campaign, and he said (summarized), “It would not be wise to oppose or obstruct the president’s agenda this year because that might reflect poorly on the Republican presidential campaign and portray us as obstructionist and so forth when the voters want us to work with the Democrats, when the voters want us to make Washington work.”

You better hope and pray, folks, that that does not become operative on this Supreme Court choice. (interruption) Well, you can sit there and shake your head, Snerdley, and say, “No way it happens.” But you realize…? What does experience tell us has been happening the past six years? And you’re gonna say, “Well, the Supreme Court nomination’s a different thing, Rush. They’ll pull their pants up on this one, Rush, and they’ll hang in.” Well, we hope. We hope. It would be one of the few times. Anyway, Ann, thank you el mucho.

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