Saturday, February 13, 2016

Antonin Scalia R.I.P.

First, let me say how disgusting it is that Mr. Scalia (whom I despised as a jurist, but will honor as a human being and fellow mortal) is not yet removed from Texas to return to his family before the ugliest side of politics is exposed by the likes of Ted Cruz.

That said, Kevin Drum gets it right:

This is going to set up an unbelievable battle in the Senate. I wonder if Republicans will even make a pretense of seriously considering whoever President Obama nominates?

And the answer to that is:  No.  As Josh Marshall points out, it took less than an hour to settle that issue.  Any nomination for the Court is dead until 2017.  Which, as Drum points out, isn't all bad:

In the meantime, the court is split 4-4 between conservatives and liberals. So even if Republicans refuse to confirm a new justice, Obama's laws and executive orders are safe for another year in any case for which the opinion hasn't yet been finalized. You can't overturn an action on a 4-4 vote. This means that EPA's carbon rules are probably safe. Ditto for Obama's immigration executive order. Union shops in the public sector are probably safe. Abortion restrictions probably won't go anywhere. One-person-one-vote is probably safe.

Either way, this is now the most important issue in the presidential campaign. Appointing Supreme Court justices has always been one of the biggest reasons to care about who wins in November, but it's stayed mostly under the radar until now. No longer. Both sides will go ballistic over this, and the Supreme Court will suddenly seem like the most vital presidential power ever. If you thought things were getting nasty before this, just wait. You ain't seen nothing yet.

So the GOP may run on this, hoping it gives them some traction.  However, what of the EPA?  What of immigration?  Unions in the public sector?  Voting rights?

How much pain will they put up with in hopes of getting one Supreme Court Justice, especially if their nominee is either Trump or Cruz?  How great a risk do they wish to take that those issues are left alone by a divided Court and dropped from its docket, perhaps never to return?

What's decided in an hour may well be repented upon for much, much longer.

There is a price to be paid for inhumanity and foolishness, and it is not always paid merely in clucking tongues and the disdain of those with better regard for the customs of decency.


  1. Another scenario which might cause Republicans to rethink their strategy is the possibility that Democrats could win the presidency and a slim majority in the Senate in the next election. Should that happen, my bet is on Ruth Bader Ginsburg announcing her retirement, thus leaving two vacant seats on the bench for a Democrat to fill. Of course, questioning their own strategy would involve thinking beyond the moment, and the present GOP has shown itself sorely lacking in the skill.

  2. It's not about gaining anything; it's only about obstructing.

    Thanks, Obama!

  3. Oh right. I forgot. The thread of self-destruction persists and continues to be ignored in the determination to obstruct.

  4. Odd, ain't it? I mean, why are they obstructing on this? Because something can be done if a Republican wins the White House? That's a year away, and the court's docket won't be frozen automatically because only 8 justices sit on the bench. Kagan has recused herself numerous times, and nothing says the Court can't hear a case without the statutorily set number of judges in the courtroom.

    Most of the triumphs of the right-wing pending before the Court, or expected triumphs, are done now. The Court can't simply postpone them until a nominee is selected, they'll have a docket so empty this year they'll be on vacation for a year, and so full in two years they won't be able to get the work done fast enough.

    Which means the Court will continue to do its work, and probably deadlock on every case the GOP wanted to win. And a deadlock is a final decision, too (see, e.g., Bakke, where 9 different opinions were written, and a consensus was worked out on the ruling, but there was never a majority for any one holding).

    This is going to screw the country hard, and I wonder if there isn't some group (business, etc.) out there who might be calling McConnell soon to say, "Uh, wait a minute...."

  5. Would it be entirely out of order to call the GOP strategy stupid?

  6. What I love so much about the Republicans who are falling all over themselves over that champion of "originalism" is that they are denying that the Constitution, as originally written, couldn't be clearer on the point at hand, that the sitting president gets to name people to vacant court positions. As always, when it comes to "originalism" it's a sometimes thing, depending on who it applies to. "Equal Justice Under Law" even more so.