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ANTONIN SCALIA: A LOVE SUPREME (OR NOT)
Feb. 15th, 2016 01:33 pmYou don’t need me to tell you that Justice Antonin Scalia is gone.
You also don’t need me to tell you his death is already being tastelessly and heavily politicized by people who either loved or loathed him.
And you certainly don’t need me to tell you that the political ramifications of a Supreme Court vacancy during an election year are already shaping up to be epic.
Here are some comments from me to fulfill my bloggery/1st Amendment obligations:
1. I don’t have a lot to say about Scalia himself, except that (1) obviously I disagreed with many of his opinions (in terms of both his judicial rulings and his off-the-bench comments), and (2) love him or hate him, his judicial legacy has made the modern SCOTUS what it is today. History will decide whether his impact was for better or worse.
2. For all that, Justice Scalia was living proof that when Republicans complain about “activist judges”, they mean “judges who don’t rule the way we wanted them to on politicized cases”. Because let’s not kid ourselves – Scalia’s SCOTUS decisions were often very rooted in conservative ideology, and he made it clear in his opinions – and especially his dissents – when his concerns were informed as much by the potential impact on the sociopolitical landscape and policies as the specific wording of the Constitution or a given law.
3. Whatever you may think about him personally, it’s worth mentioning that he and Ruth Bader Ginsburg – his ideological opposite – were BFFs. Let that be a lesson to us all.
4. I’m not surprised that Mitch McConnell and Charles Grassley don't want Presidente Obama to appoint a new justice before he leaves office. Yes, it’s a blatant stalling tactic in the hopes that the GOP will win the White House. But if it were (say) Mitt Romney wrapping up his final term right now, the Democrats would be saying pretty much the same thing.
However, Grassley’s claims that “it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year” isn’t actually true. So between that and the fact that we’ve got 11 months until the new POTUS is sworn in (and it will take at least a few more months to get a new Supreme nominated and approved), I’m thinking that’s probably too long to have a vacancy on the bench.
5. At the same time, it's possible this particular Senate would reject every single Obama appointee even if Obama still had another three years to go. So the outcome might be the same anyway. On the other hand, it's also worth mentioning that the GOP's current "no replacement under Obama" strategy could backfire on them – badly, and in multiple ways. That may not be a deterrent. But frankly there are very few upsides to taking the hardline on this.
6. While all the POTUS candidates and/or their super PACs will certainly make SCOTUS balance of power an election issue, I’m not overly concerned with it for a couple of reasons: (1) three sitting Supremes are over the age of 75, so the replacement issue will probably come up during the next term anyway, either via death (God forbid) or retirement, and (2) liberals who have complained about the current bench being 5-4 in favor of Republican appointees up to Scalia’s death tend to forget that this is the same conservative-controlled SCOTUS that legalized gay marriage and Obamacare. So the Democrat vs Republican appointee ratio doesn’t always guarantee a predictable party-sanctioned outcome, is what I’m saying.
7. For the record, the odds of a recess appointment, in which Obama could constitutionally fill a SCOTUS vacancy temporarily without Senate approval (and which is how William J. Brennan got his start in SCOTUS), are not high – thanks, ironically, to a 2014 SCOTUS ruling that makes it more difficult for a POTUS to do that, or at least gives the Senate more control over the situation.
8. Vox has a list of who is most likely to be on Obama’s SCOTUS appointee shortlist.
9. Inevitably, there are conspiracy theories. Alex Jones – and everyone who takes him seriously – suspects that Scalia was actually assassinated, probably by Obama, because obviously.
Another suspect is Leonard Nimoy.
Okay, that one’s satire. BUT THAT DOESN’T MEAN IT’S NOT TRUE, MAN!
Court is adjourned,
This is dF
You also don’t need me to tell you his death is already being tastelessly and heavily politicized by people who either loved or loathed him.
And you certainly don’t need me to tell you that the political ramifications of a Supreme Court vacancy during an election year are already shaping up to be epic.
Here are some comments from me to fulfill my bloggery/1st Amendment obligations:
1. I don’t have a lot to say about Scalia himself, except that (1) obviously I disagreed with many of his opinions (in terms of both his judicial rulings and his off-the-bench comments), and (2) love him or hate him, his judicial legacy has made the modern SCOTUS what it is today. History will decide whether his impact was for better or worse.
2. For all that, Justice Scalia was living proof that when Republicans complain about “activist judges”, they mean “judges who don’t rule the way we wanted them to on politicized cases”. Because let’s not kid ourselves – Scalia’s SCOTUS decisions were often very rooted in conservative ideology, and he made it clear in his opinions – and especially his dissents – when his concerns were informed as much by the potential impact on the sociopolitical landscape and policies as the specific wording of the Constitution or a given law.
3. Whatever you may think about him personally, it’s worth mentioning that he and Ruth Bader Ginsburg – his ideological opposite – were BFFs. Let that be a lesson to us all.
4. I’m not surprised that Mitch McConnell and Charles Grassley don't want Presidente Obama to appoint a new justice before he leaves office. Yes, it’s a blatant stalling tactic in the hopes that the GOP will win the White House. But if it were (say) Mitt Romney wrapping up his final term right now, the Democrats would be saying pretty much the same thing.
However, Grassley’s claims that “it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year” isn’t actually true. So between that and the fact that we’ve got 11 months until the new POTUS is sworn in (and it will take at least a few more months to get a new Supreme nominated and approved), I’m thinking that’s probably too long to have a vacancy on the bench.
5. At the same time, it's possible this particular Senate would reject every single Obama appointee even if Obama still had another three years to go. So the outcome might be the same anyway. On the other hand, it's also worth mentioning that the GOP's current "no replacement under Obama" strategy could backfire on them – badly, and in multiple ways. That may not be a deterrent. But frankly there are very few upsides to taking the hardline on this.
6. While all the POTUS candidates and/or their super PACs will certainly make SCOTUS balance of power an election issue, I’m not overly concerned with it for a couple of reasons: (1) three sitting Supremes are over the age of 75, so the replacement issue will probably come up during the next term anyway, either via death (God forbid) or retirement, and (2) liberals who have complained about the current bench being 5-4 in favor of Republican appointees up to Scalia’s death tend to forget that this is the same conservative-controlled SCOTUS that legalized gay marriage and Obamacare. So the Democrat vs Republican appointee ratio doesn’t always guarantee a predictable party-sanctioned outcome, is what I’m saying.
7. For the record, the odds of a recess appointment, in which Obama could constitutionally fill a SCOTUS vacancy temporarily without Senate approval (and which is how William J. Brennan got his start in SCOTUS), are not high – thanks, ironically, to a 2014 SCOTUS ruling that makes it more difficult for a POTUS to do that, or at least gives the Senate more control over the situation.
8. Vox has a list of who is most likely to be on Obama’s SCOTUS appointee shortlist.
9. Inevitably, there are conspiracy theories. Alex Jones – and everyone who takes him seriously – suspects that Scalia was actually assassinated, probably by Obama, because obviously.
Another suspect is Leonard Nimoy.
Okay, that one’s satire. BUT THAT DOESN’T MEAN IT’S NOT TRUE, MAN!
Court is adjourned,
This is dF
