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Justice Scalia, RIP

I’ve just heard the news: Justice Scalia found dead on a hunting trip. [1] First, gut reaction: I have not been as unsettled about the future of the country since 9/11.

Open thread.

UPDATE: From Justice Scalia’s dissent in Obergefell, insight into the kind of country we have become. Emphases below are my own:

I write separately to call attention to this Court’s threat to American democracy. The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,  cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Here is a terrific remembrance of Scalia by Ross Douthat. [2] Excerpt:

It is because of all of this — because of his immense influence, his intellectual clout, his long cultural shadow — that Scalia’s death in a presidential year promises to be a nightmare for the republic.

… [It is] impossible to imagine Republican senators confirming an Obama appointee in the next 11 months. And it’s probably a good thing for the republic that they won’t: If there is to be a liberal replacement for a figure as towering as Scalia, if the court is about to swing sharply to the left, it’s far better for the judicial branch’s legitimacy if that swing follows a democratic election, a campaign in which the high court stakes are front and center in the race.

But because they will be front and center, Scalia’s death promises a war like none other between here and November, and an extra layer of insanity in a campaign already defined by radicals and demagogues.

The irony is that this kind of high-stakes collision of law and politics is precisely the thing that Scalia’s legal philosophy strained to curb and check and roll back, by promoting a more limited and humble vision of the Supreme Court’s role in our republic.

But for all of his importance, all his influence, in this effort he clearly failed — and what’s about to come will prove it.

The next US president will name Scalia’s replacement, and likely Ginsburg’s (she’s in her 80s, and a cancer survivor. He or she may well name Kennedy’s and Breyer’s, as they are both approaching 80.

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198 Comments To "Justice Scalia, RIP"

#1 Comment By TW Andrews On February 14, 2016 @ 12:33 pm

As one of the liberal commenters on this thread, I will own that if the situations were reversed (i.e. it was Ginsburg who’d passed and we had a Democratic Senate with a Republican President, and similarly mirror-image situations wrt to the upcoming elections), I would expect the Democrats to use every lever they had to push for as liberal nominee as possible.

I don’t know that I would be able to stomach the same sort of bet that the GOP is making (i.e. bank on winning the election and not losing the Senate), because I’d much rather a moderate conservative replace Scalia than someone who would do their best to follow in his footsteps.

I don’t know that indefinitely delay is a winning position for McConnell, Cruz, et al., but I don’t think it’s an abdication of their responsibility.

#2 Comment By Richard Parker On February 14, 2016 @ 12:34 pm

“If we go strictly by the Constitution, then women, black people, and non-property owners would have no say in our society.”

15th, 19th, and 24th amendments to the Constitution.

I think the Republicans will play this badly. Obama will be president until mid-January 2-0-1-7. That is far too long to be without a functioning court. And who knows who will be elected in the upcoming elections.

This may well be the point of maximum leverage for the Senate Republicans. Be adults! At least make a good faith effort to negotiate with the President for an acceptable comprise nominee to be quickly confirmed.

#3 Comment By JonF On February 14, 2016 @ 12:35 pm

Re: I fear that we have seen the last “conservative” judicial precedents in my lifetime.

Depends on what you consider “conservative”. I predict that no matter who fills Scalia’s vacancy and when, the Court will continue to kowtow to corporate interests and to rubber stamp the security state.

#4 Comment By Scott in PA On February 14, 2016 @ 12:38 pm

This is all easier to absorb when you realize that America is already lost.

#5 Comment By Rich On February 14, 2016 @ 1:09 pm

A great man. I don’t think we make them like him anymore. God bless his soul.

#6 Comment By John On February 14, 2016 @ 1:14 pm

My thoughts are in line with EngineerScotty. I am sorry he died, pleased he was lucky to die I his sleep, and relieved he is no longer on the court.

#7 Comment By Glaivester On February 14, 2016 @ 1:18 pm

A word of warning. In every election since 1984, if the Supreme Court was an issue, the election results favored the Democrats.

That’s pretty much what, one election?

#8 Comment By Uncle Billy On February 14, 2016 @ 1:44 pm

The death of Scalia is indeed bad news for conservatives. Scalia was more than a vote on the Supreme Court. He was an intellectual force and the de-facto leader of the conservative block. I do not see Roberts, Thomas or Alito taking his place.

I doubt McConnell and the Senate Republicans will allow Obama to put a replacement on the Court. That will fall to the next President, along with most likely the seat of Ruth Bade Ginsburg. Justice Anthony Kennedy is close to 80, and thus his seat may open too.

The next President may have three (3) appointments to the Supreme Court in that 4 year term. This election will be quite bare knuckle.

#9 Comment By Carlo On February 14, 2016 @ 1:46 pm

Scott S.

“a staunch conservative judge will be likely replaced by a moderate liberal judge.”

I assume you view previous Obama appointments as “moderates.” The fact that you could view the people who wrote the Obergefell majority opinion as “moderate liberals” is almost comical. Who is an “extreme liberal” in your book? Max Stirner?

#10 Comment By William Dalton On February 14, 2016 @ 1:51 pm

I am flabbergasted by those writing here that it would be wise for Republicans to give consideration to Obama’s nomination to replace Scalia before the election. If this vacancy is open on election day, both parties have an added incentive for an increased turnout to guarantee their side wins the White House. But that incentive is greater for the Republicans whose seat on the Court it is to lose. If the GOP wins and a new conservative is put on the bench, Democrats are in the same position as before Justice Scalia’s demise … and probably better, because no replacement will be the conservative mastermind that he was. If Democrats, either Obama or Clinton or Sanders, put on their nominee, it will be a sea change in the Court. Additionally, the added incentive for conservative voters to turn out to vote in the Presidential race will also be felt in the U.S. Senate races, as many as may be in doubt. So that is a second reason for Republicans to sit on any Obama nomination until after the election.

But the most important reason is that if Republicans were foolish enough to confirm Obama’s appointment before the election, nary a Republican whose name is on the ballot this fall will find himself returning to Washington, at least on the taxpayer’s dime. They will disowned faster than Eric Kantor and John Boehner.

#11 Comment By Loudon is a Fool On February 14, 2016 @ 1:58 pm

If the meaning of the constitution rests on who gets elected president, then we have no constitution.

This is correct. Both as concept and observation. It’s tragic that Harry Reid says that the Senate’s advice and consent on Supreme Court nominees is the Senate’s most important duty.

To all the liberals who think the GOP should move forward with business as usual, is that something you really believe? We know from various studies that progressives lack empathy, so it’s difficult for you to imagine this. But give it a shot.

For the last 40 years defenders of the Constitution have been fighting a rear guard action against a court that pretty much hates the common good. In liberal states this is, mostly, not a problem. If you want to do sodomy in the streets, kill some babies, gay marry each other, fine some Christian bigots, legalize drugs, increase the minimum wage, grab some guns, impose some crazy regulations on companies, expand the regulatory state, restrict the freedom of workers to work, or engage in whatever kind of progressive lunacy you can think up in your drug addled, sex addicted, communiss brain, you’ve pretty much got carte blanche. You have state legislatures that represent you and you have a Supreme Court (through the combination of conservative justices who believe in state police powers and progressive justices who believe in your self-destructive lunacy) that will support your experimentation. Your hellish vision of the common good has been implemented in several locales across the nation (Chi-raq, for example).

For conservatives, this is impossible. The court has eliminated state police powers when exercised to promote traditionalist values. So you’ve won. Pretty much the only freedoms traditionalists have left in America, is that they can move to red states and try to carve out a very small enclave of freedom, they still maintain speech rights and a modicum of free exercise rights and they can still own guns. But even those freedoms are too much for Scott S. “Tradition” requires our obeisance to the progressive cause.

Only the most illiberal person could believe that. Progressives don’t want pluralism. They want victory at any cost.

For the few non-traditionalists out there who are actual liberals, consider whether the reactions of left and right as to the future of America due to the death of a single Justice is evidence of a healthy Republic. Is it remotely possible that any person at the founding intended for the federal courts to be as powerful as they are? Is it at all consistent with the separation of powers inherent throughout our Constitutional structure for one branch to be so ridiculously dominant? But if we aren’t willing to fix the systematic problem of an out of control judiciary, at the very least we should be able to agree to the status-quo, which allows traditionalists extremely minimal freedom and progressives the license to be as freaky as they want to be in their enclaves of revolting debauchery. It’s not a just compromise. But it at least allows progressives to pretend to be pluralistic. Maybe they’re tired of pretending.

#12 Comment By William Dalton On February 14, 2016 @ 2:15 pm

Eamus Catuli:

“Despite McConnell’s rash promise not to confirm anyone this year, the Senate GOP is going to come under big pressure if the Democrats play this right. If Obama puts up some kind of compromise candidate and they block him/her, then as TW says, they’re betting everything on winning the election and could end up with a much worse outcome if they lose. Or, Obama could nominate, say, a Latino, and Democrats could rally support for that person in the Latino community, daring the Republicans to block him/her and thus antagonize that demographic even more than they’re already doing.”

If Obama puts up a “compromise” candidate, one who would be acceptable if the President’s departure from office were not looming, the Republicans lose nothing by waiting until after the election to act. If Clinton or Sanders carry the election, the Senate can act then to confirm Obama’s nomination, if they consider that more desirable than waiting to see what the new President will propose. If a Republican is elected, they can receive the name of the newly elected President’s nominee even before inauguration day, hold hearings, and be able to hold a vote of confirmation the day the newly inaugurated President submits the formal nomination.

If the President nominates a Latino justice (he already gave us Sotomayor – it’s not like this is an issue in the Latino community), Republicans can say, “Just wait and we will give you Mr. Justice Ted Cruz.” Take him. Please!

#13 Comment By route66news On February 14, 2016 @ 2:42 pm

Jeez Louise, a lot of people on this post — the author included — need to take a chill pill or drink a beer or two or something. The pearl-clutching hysteria is almost laughable if it weren’t so pathetic.

Look out the window. Despite Scalia’s death, the sun still came up. You still were able to go to church. You’re able to go to your favorite restaurants or potlucks. A little perspective is in order.

#14 Comment By John T. Broom, PhD On February 14, 2016 @ 2:46 pm

May God shower grace and peace upon Justice Scalia’s family and friends. We have lost a champion of the founder’s vision of a limited federal government, a land of liberty, and a virtuous people. His orginalist interpretation was a refreshing view of the role of the Constitution and the jurists place. If you are unhappy with things, then do what the founders intended and change the Constitution by amending it as has been done twenty-seven times before. If the Constitution can mean whatever five be-robed attorneys determine it is, the republic (what is left of it) is doomed and the re-education camps are right around the corner.

#15 Comment By Bobby On February 14, 2016 @ 3:03 pm

In reading through these comments, it reminds me of why it’s becoming harder and harder to take social conservatives seriously.

Among social conservatives, there seems to be a perpetual fear of impending doom. But I have no idea where this comes from. I went running this morning, and ran by several large evangelical churches that are known for their strident social conservatism. Two of these churches were advertising prayer services to commemorate the conservative legacy of Justice Scalia and to pray for a like successor. One of the churches even advertised its Scalia event as “URGENT”.

This is a joke. These evangelicals live in the wealthiest country on earth. The parking lots of the churches advertising Scalia-themed events were packed full of German sedans, high-end SUVs, and several Teslas. In fact, I stopped and counted more than 10 Teslas in the parking lot of the church that advertised its Scalia-themed event as URGENT. There’s a rich irony about a pastor that preaches about impending persecution to wealthy, white audience that drives to church in cars that cost more than the average American home and worships in a palatial building that probably cost $50M to build.

Truth be told, Justice Scalia’s jurisprudence was rather vanilla on about 95% of the issues that came before the Court. He is praised by social conservatives for one reason and one reason alone: He had a strong pro-government bent, such that he was generally willing to uphold state-based social legislation aimed at disliked minority groups. But if evangelicals are becoming a similarly disliked minority group, it’s unclear that Justice Scalia’s jurisprudence is of much help. Of course, many were banking on the fact that he would jettison his pro-government stance when religious liberties were at stake. There’s no indication that he was about to do that. After all, he penned the most anti-religious liberty opinion the Court has issued in a century (Employment Division v. Smith).

It’s time for evangelicals to hop into their Teslas, enjoy a nice afternoon ride, head back to their McMansions, and rest assured that our Republic will survive the passing of Justice Scalia.

#16 Comment By Steve in Ohio On February 14, 2016 @ 3:06 pm

I’m thankful for Scalia’s time on the Court, but it was half a loaf. Reagan’s dream was to put both Scalia and Bork on. As a Monday morning quarterback, he should have nominated one of them instead of Sandra Day O’Connor. Many Court pundits believe that if he had nominated Bork first when the Republicans had the majority, he could have still had Scalia confirmed by the post 1986 Democratic Senate. It would have been harder politically to vote against the first nominee of Italian descent.

#17 Comment By Siarlys Jenkins On February 14, 2016 @ 3:33 pm

FWIW, I just sent the following to both the Democratic and Republican senator from my home state. I wouldn’t offer it as boiler plate to anyone, everyone roll your own, but I think it would be great if every senator is deluged with something similar:

Justice Scalia’s body is hardly cold, the memorial services have not even been finalized, but the chattering classes are full of fluff about if or how or who a new appointment will or will not be made this year.

I expect you, my Republican senator, and my Democratic senator, not to mention my presidenent, the chair of the senate’s judiciary committee, and the senate majority leader, to put this childish nonsense aside and work in a timely manner, after a respectful period for decent burial and remembrance, to get that seat on the court filled.

This insane, juvenile, narcissism about waiting a year has got to stop. This is the president and the senate we are talking about, not a nursery school playground. Of course the candidates President Obama would dearly love to nominate would never make it out of the judiciary committee. Likewise, those Senator McConnell would dearly love to put on a fast track for confirmation will never be nominated by President Obama.

Perhaps that is a good thing. This is a time to break our national addication with trying to sway the Supreme Court and hold elections for other branches of government hostage to second-guessing what will come before the court next.

The mature, sensible, patriotic thing to do is obvious: President Obama needs to make a short list of candidates he is willing to nominate, who he believes would be acceptable to the majority in the senate. Senator McConnell and the chair of the judiciary committee need to make a short list of candidates they believe could be confirmed, who President Obama would deem acceptable to nominate. Then pick from the names that appear on both lists.

I believe that anyone who is on record that any controversial precedents of the court must be preserved or must be overturned should be disqualified. We need justices who will read the briefs dispassionately and weigh them on their individual merits. Is that so hard to understand?

Remember, if you all go with the 2017 Lotto, we may end up with a Democratic president and a Democratic senate, or a Republican president and a Democratic senate, or a Democratic president and a Republican senate, or a Republican president and a Republican senate. Those all seem to be reasonable propositions right now. So stop gambling with our constitution, and do what is necessary to get that seat filled, ASAP.

The funny thing about Kennedy is, I disagree with both his “liberal” decisions AND his “conservative” decisions in large part. I would never wish anyone dead, but perhaps he will take a leaf from the David Souter play book, and decided its time to retire to his beloved California? Then we could have some kind of “Missouri Compromise” … one lukewarm conservative and one lukewarm liberal, if we’re lucky, both of them equipped with a brain.

#18 Comment By Pilgrim On February 14, 2016 @ 3:52 pm

I think Scalia was one of many answers to the prayer “God Bless America.” Those weren’t just words we were singing. Condolences and gratitude to his family. Thankful to God for someone who could articulate conservative positions so well.

#19 Comment By Charlieford On February 14, 2016 @ 4:01 pm

“The next US president will name Scalia’s replacement,” because, as the Constitution mandates, black presidents only get 3/5 of a term . . .

#20 Comment By Jill A. On February 14, 2016 @ 4:01 pm

If President Obama should not appoint the next Justice because he is a “lame duck” president, could we use that logic and not let him sign the Trans-Pacific Partnership agreement? You know, the secret trade agreement the Republicans voted to “fast track”, thus allowing the President to sign it without bringing it to Congress first.

That trade agreement is going to affect us for a long time, too.

#21 Comment By ARM On February 14, 2016 @ 4:06 pm

“Guess I’m just a legal rube, but I was always baffled by Scalia’s “originalist” philosophy. If we go strictly by the Constitution, then women, black people, and non-property owners would have no say in our society.”

No, because the Constitution provides for the possibility of amendments being passed, which Scalia’s philosophy recognizes as equally binding, and amendments have, in fact been passed regarding the issues you name. (Besides, the original framers took some pains to avoid writing black inferiority into the Constitution, or tried to do so, anyway.)

#22 Comment By Casimir On February 14, 2016 @ 4:16 pm

I’m sure that Scalia left directives on what to do with his body, but wouldn’t it be more fitting to let American women of child-bearing age vote on it?

#23 Comment By MichaelGC On February 14, 2016 @ 4:22 pm

RR says on February 13, 2016 at 11:41 pm

If Obama manages to appoint Scalia’s replacement, or if the Democrats hold the White House in the fall election and either Clinton or Sanders name his replacement, then you should finish your Benedictine Option book post haste. A liberal majority for the foreseeable future on the Supreme Court would be a disaster for religious liberty. We religious conservatives would definitely need to prepare to live in a much more hostile environment to our rights and possibly as exiles in our own country.

True that.

In the Lawrence decision, Justice Scalia prophesied that the result would be government-sanctioned homosexual marriage. The majority addressed Scalia’s concerns, stating: “It (Lawrence) does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

Of course, Lawrence became the cornerstone for Masachusetts’ Goodridge within months, and every decision after, right up to Obergefell.Kennedy, who must really like citing his own opinions, didn’t catch the irony that he was fulfilling Scalia’s prediction, the one he dismissed out of hand, as he referenced Lawrence 13 times to support Obergefell. So much for the fine and subtle judicial mind that we are all supposed to be in awe of.

In Obergefell, Scalia and the three other dissenters were a chorus making dire warnings that it would be the end of the free exercise clause.

Kennedy said not to sweat it, though.

We are in so much trouble.

#24 Comment By KD On February 14, 2016 @ 4:44 pm

I would be shocked if the Senate caves to Obama because we are going into an election, 1/3 of the Senate will stand for re-election, and Republican Senators will not want to be explaining to their base why they appointed one of Obama’s crazy nominees.

A Senator could care less how his or her actions will hurt him in the national opinion, they are only going to care about opinion in their Senate districts, as well as a nomination challenge to the Right in the next primary contest.

Its just too dangerous politically for most of them I suspect. The Congress already is being protrayed in the Right-wing press as being lap-dogs for Obama.

#25 Comment By Dale White On February 14, 2016 @ 4:53 pm

Many comments here give off the impression that Scalia’s death is a reason for real, almost physical fear for the future of the country. Personally I’m interested in seeing an articulation of precisely what it is that you fear. What horrors might occur? In what ways would your life, your safety, your comfort, be affected by the changes you envision. Specifics?

#26 Comment By Michael On February 14, 2016 @ 5:15 pm

First, gut reaction: I have not been as unsettled about the future of the country since 9/11.

I think you are reading far too much significance into the fate of one man.

First, Scalia was no friend of civil liberty. He was with the majority on the Citizens United ruling, which made campaign contributions “protected speech” and declared corporations to be “persons” with more rights and fewer responsibilities than ordinary citizens. He could write all the eloquent dissents he wanted to on hot button social issues, but when the interests of the real owners of the U.S. were on the line, he knew exactly which way to rule, and he did.

Second, as the late George Carlin pointed out, and as the Princeton U. study published last year statistically proved, the U.S. was bought, sold and paid for a long, long time ago. It matters not what sock puppet sits on the Supreme Court, the Oval Office, the House or the Senate. They are all bought and paid for.

As professor Michael Parenti pointed out years ago, when it comes to elections, there is a primary which happens before the primary you and I get to vote in. It is called the “money primary.” This is where prospective candidates are interviewed by large donors, to determine who will get campaign contributions, and thus be allowed to run for office in the first place. This means that anyone you and I get to vote for has already sold himself (or herself) to the donor class from the start. This also applies to the Supreme Court.

No elected or appointed official in the United States (including Supreme Court Justices) sets any public policy. Public policy is set by the various factions of the donor class. Mike Lofgren calls this class the “Deep State.” The Deep State consists of Wall Street, the military industrial complex, the oil and other extractive industries and DHS and the “spook” agencies (which constitute a Mafia for the above).

If we keep this in mind, we will not allow ouselves to be perturbed by events which are meant to distract us from underlying, fundamental issues.

RIP, Justice Scalia. His death is a loss to his family. However, his death is of no significance whatsoever to the fate of the Republic, which was settled ages ago.

#27 Comment By Clint On February 14, 2016 @ 6:54 pm

McConnell will implement The Thurmund Rule, just as Harry Reid would have done if the situation was reversed. McConnell will delay the nomination and confirmation process until after the next president is seated. McConnell is not about to allow the lame duck, Obama to get his nomination through.

It’s amusing to see others attempting to ignore and argue against McConnell and The GOP delaying this process until the after the lame duck, Obama is out of office.

#28 Comment By cka2nd On February 14, 2016 @ 7:40 pm

I love William Dalton’s idea of Obama making a recess appointment of former Justice David Souter. It would, of necessity, be a temporary appointment but it would replace a bad justice with a better one.

Thank you to Public Defender for giving me one good reason to appreciate a justice I loathed.

#29 Comment By Clay G On February 14, 2016 @ 10:50 pm

In 2006 Obama, Clinton, Kerry, and Biden all supported filibuster of liberal Sandra Day O’Connor’s replacement with conservative Alito!:

[3]

#30 Comment By John On February 15, 2016 @ 12:15 am

That second “I ” should be an “in.” Texting is far harder than typing on a regular computer. If it wasn’t convenient I’d turn the computer on.

#31 Comment By Sean On February 15, 2016 @ 12:18 am

I’ve been reading some really cool stuff about Scalia’s deep and enduring friendship with Ginsburg and the hunting trips he would take Kagan on to familiarize her with firearms. Turns out he actually rooted for Obama to add Kagan to the bench as well.

Those stories, combined with Scalia’s strict adherence to constitutional authority makes me wonder: Is it *really* honoring his memory to deny our elected president his constitutional duty to appoint a successor? How is this not a flavor of The Law Merited Impossibility (TM) that is, allegedly, an underhanded tactic of “the left”?

#32 Comment By Gretchen On February 15, 2016 @ 2:07 am

RR: Why shouldn’t Obama “manage” to nominate Scalia’s replacement? That’s how it works. The President nominates replacements to the Supreme Court. Obama is the President. He gets to nominate whomever he wishes to the Supreme Court. You may wish that he wait until a Republican is in office for the nomination to happen, but that’s not what the Constituion specifies. The President who is in office when a vacancy occurs fills that vacancy. Period. That’s what the Constitution calls for.

#33 Comment By Antony On February 15, 2016 @ 11:06 am

I’m not happy about Scalia’s passing. I just don’t think it really changes the presidential race one way or the other. It will still probably go to the highest bidder. Which is exactly how the late Justice would have wanted it.

#34 Comment By Loudon is a Fool On February 15, 2016 @ 12:22 pm

Personally I’m interested in seeing an articulation of precisely what it is that you fear. What horrors might occur? In what ways would your life, your safety, your comfort, be affected by the changes you envision. Specifics?

Freedom and the common good are notably absent from your progressive concern trolling. Go figure. Evils that progressives have yet to unleash on our Republic include: (1) physician assisted suicide, (2) various children’s rights (which get particularly icky when gender dysphoria is at play), (3) Kennedy’s already made a play for a Constitutional right to human dignity which will eviscerate actual Constitutional freedoms like freedom of association and free exercise, (4) the big gun grab, (5) I would expect significant curtailments in free speech, and (6) the loss of charitable exemptions for churches.

#35 Comment By Floridan On February 15, 2016 @ 12:34 pm

yesthatkate: . . . liberals’ gleeful responses to this news

Which liberal of any stature responded to Scalia’s death with glee?

#36 Comment By Siarlys Jenkins On February 15, 2016 @ 12:38 pm

If this vacancy is open on election day, both parties have an added incentive for an increased turnout to guarantee their side wins the White House. But that incentive is greater for the Republicans whose seat on the Court it is to lose.

And that kind of crass manipulative opportunism is OK with you, William Dalton? Ask not what you can do for your country, ask how trashing your country can promote a higher turnout for the lazier and less interested voters who if they bother at all, will likely vote your way. Isn’t that what we have a Supreme Court for?

“It (Lawrence) does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Of course, Lawrence became the cornerstone for Masachusetts’ Goodridge within months, and every decision after, right up to Obergefell.

If we were dealing straightforwardly with constitutional law, the one should not have followed the other. Lawrence was based on the right to privacy, not on equal protection of the law. Obergefell necessarily turned on equal protection, because whatever marriage is, it is not rooted in the right to privacy, but the public celebration of your perpetual mutual commitment (without going into detail on what you could have done in private anyway).

The fundamental problem is that everyone from the Goodridge majority to the strident social conservative opposition talked up that this was all about being pro-gay or anti-gay, when the constitutional issues were nothing of the kind. Thus, justices who wanted to be kind to the gay appellants found ways to word their opinion, albeit they left holes anyone could have driven a Mack truck through.

Justice Kennedy’s improvident high-flown rhetoric made a significant contribution to this confusion, and he did, in the end, validate Justice Scalia’s warning, which was entirely unnecessary.

#37 Comment By JonF On February 15, 2016 @ 1:04 pm

Re: Which liberal of any stature responded to Scalia’s death with glee?

No one of any stature. But among the rank and file– there’s definitely been some grave-dancing among my liberal Facebook friends. Not all of them, but, yes, some of them.

#38 Comment By JonF On February 15, 2016 @ 1:08 pm

Re: (1) physician assisted suicide, (2) various children’s rights (which get particularly icky when gender dysphoria is at play), (3) Kennedy’s already made a play for a Constitutional right to human dignity which will eviscerate actual Constitutional freedoms like freedom of association and free exercise, (4) the big gun grab, (5) I would expect significant curtailments in free speech, and (6) the loss of charitable exemptions for churches.

Not to mention cats partying with dogs. But most of the stuff on that list requires legislative action, so as long as the GOP continues to do well in midterms and state level votes you can cross them right off the list. If we reach a point when things like gun rights are no longer winning issues at the ballot box then it really won’t matter where the courts are on the issue. Do note that Oberfell didn’t happen until the public shift on that issue.

#39 Comment By JonF On February 15, 2016 @ 1:16 pm

Meanwhile on Planet Earth, Loudon, crime, and indeed nearly all measures of social dysfunction, have steadily improved for the last twenty years, in blue states and red both. Your fears about progressive politics leading to social collapse have been refuted by actual events.

#40 Comment By panda On February 15, 2016 @ 1:28 pm

“Watched the last twenty minutes of an interview that Brian Lamb did of Scalia back in 2012. One of his comments made me nod my head up and down. It had to do with judicial activism. His comment was that if one truly believes in abortion rights, gay marriage etc., then the argument should be posed to the American people as a whole through their elected representatives in Congress and the legislatures of the states— not to nine judges sitting in a courthouse.

That didn’t stop him from overturning parts of the VRA extended in a near unanimous vote of Congress, while explicitly arguing that one can’t expect congressmen to vote against extending it, given the pressures of public opinion. Was there ever a more brazen statement of contempt to the principles he elaborated in that interview by any liberal jurist?

#41 Comment By Ron Goodman On February 15, 2016 @ 3:56 pm

A Senator could care less how his or her actions will hurt him in the national opinion, they are only going to care about opinion in their Senate districts

I hope this is some kind of typo, because Senators don’t have districts.

#42 Comment By Siarlys Jenkins On February 15, 2016 @ 5:32 pm

Senators from toss-up states may well be holding their fingers to the winds before they commit themselves. That’s why I wrote to both of mine.

#43 Comment By Loudon is a Fool On February 15, 2016 @ 8:42 pm

Meanwhile on Planet Earth, Loudon, crime, and indeed nearly all measures of social dysfunction, have steadily improved for the last twenty years, in blue states and red both. Your fears about progressive politics leading to social collapse have been refuted by actual events.</blockquote.

You and Bobby and Dale White should get together, lounge on pillows, eat a Double Quarter Pounder with Cheese or two and have yourselves a modernist, consumerist, criminal justice Hail Ceasar party. We're not free and our souls cry out for release, but by golly, we're fat and comfortable, the brown people are in jail and we have lots of cool stuff. Yay America!!!

#44 Comment By Thomas Hodge On February 15, 2016 @ 8:47 pm

Hrmmm…I posted a comment two days ago pointing out that the logic you cite in Scalia’s dissent also applies to Lawrence. All the Scalia defenders I think should just come out and say that they agree with Scalia, that Lawrence was wrongly decided and that sodomy should be illegal–if they disagree they should say why they disagree with one and not the other as for Scalia they were very tightly linked. But Rod didn’t approve that post it appears. I’m not sure why, I said nothing insulting…but perhaps he won’t approve this one either.

#45 Comment By Siarlys Jenkins On February 16, 2016 @ 12:08 pm

Thomas Hodge, you must be new around here. I’ve been defending Lawrence since God was very young and trashing Obergefell since not long after the Resurrection. Admittedly I am not a “Scalia defender,” I think differently about him almost every day of the week. He did some good, he did some bad, I’m glad the wisdom of other justices limited much of the damage he might have done, I’m glad he was there when he could clarify things eloquently… but bottom line, I am not bound by Scalia’s logic as the baseline of my own thinking. His dissent to Lawrence was curmudgeonly muddle, and his dissent to Obergefell was insightful, even if his rhetoric was as high flown and overdone as Kennedy’s.

#46 Comment By Scott S. On February 16, 2016 @ 1:02 pm

@ Carlo, February 14, 2016 at 1:46 pm:

The Obergefell opinion was written by a Reagan appointee. But yes, acceptance of same-sex marriage isn’t a particularly moderate liberal opinion these days – it’s pretty much [4] now.

#47 Comment By Loudon is a Fool On February 16, 2016 @ 1:27 pm

@Thomas Hodge

Scalia didn’t say sodomy should be illegal in Lawrence. I’m pretty sure he said it was the stupid law. The issue in the case was not whether sodomy should or should not be legal, but whether the U.S. Constitution protects, or even contemplates, the act of sodomy. Other than in Article III.

#48 Comment By Siarlys Jenkins On February 16, 2016 @ 5:12 pm

The constitution does not protect sodomy, any more than it protects abortion. The constitution does not even contemplate whether sodomy is, or is not, the primary form of gay sexual expression — many who comment here have assured us that it is not.

In any case, the constitution reserves a significant sphere of privacy to the individual, free of government meddling. The fact that police were invading that sphere armed with a law criminalizing sodomy is secondary to the real constitutional issue.