james_davis_nicoll | Antonin Scalia, U.S. Supreme Court justice, dead at 79

Because I have to

That exact same clip is in half the posts on my friends page.

You too, huh?

A lot of bells ringing on my Facebook feed, too.

And Tramp The Dirt Down.

Not

That was my thought as soon as I heard. I do send condolences to his family and friends, though.

Yes, I'm sure the Koch Brothers and Focus on the Family are heartbroken.

Exactly what my brother-in-law said!

One hates to gloat over the dead, except in this case, one doesn't hate it half as much as one should.

The gloating is not for the fact that he's dead, but rather for the fact that he cannot do any more damage. He wanted to make me and people like me illegal (even though I don't live in his country) and that made him my bitterest enemy, which is deeply depressing when his hatred was so completely impersonal.

That kind of nonsense I have no need of, and its absence is what I celebrate.

If my sarcasm tags were too well hidden, I'm with you.

Be interesting to see what sort of appointment to the court the Republican majorities in Congress express a willingness to accept. I doubt Congress is going to accept any nomination but someone who makes Scalia look like a moderate.

I'm not sure how you could find such a person, but as I recall American Supreme Court justices don't have to be judges or lawyers or anything prior to their appointment. Obama could in principle nominate Beyoncé. I might be tempted to try that in his place, just to see how many members of congress are carried off by aneurysms.

No, Michael Moore. :)

I suppose either Mrs. Knowles-Carter or Mr. Moore would be sufficient to trigger more than a few cerebral hemorrhages.

Sixty-something white guy, no?

You want someone in their forties or fifties, traditionally, so they can have a lasting influence. You totally don't want to appoint any men until there are at least five women on the court.

I'm sure Obama can think of a learned black woman or six with a prestigious law degree and no older than mid-forties, but I can also imagine wanting to gift the Republicans with an opportunity for election year PR suicide.

True, but we're talking cerebral hemorrhages here, not practicality. :)

Part of what drives the cerebral hemorrhage is the sense that it could be for serious.

If it absolutely has to be a man, how about Ta-nehisi Coates? Eloquent, seriously concerned for justice, willing to think hard about the issues; what's not to like?

He has no judicial experience or even a law degree, which makes him even less experienced than Harriet Meiers, whose nomination was laughed out of the Senate by Republicans and Democrats alike. Coates would have no chance at confirmation, and rightly so because appointing someone solely for their views and not experience is precisely what the confirmation process is supposed to stop.

Right now the smart money seems to be pooling on Sri Srinivasan -- he's a moderate who was approved to the DC Circuit by unanimous vote, making it likely that the more principled Republicans in the Senate would break with the hardliners on the issue.

If there's a serious chance of getting someone passed, absolutely.

If the republicans wouldn't pass Moses returned in glory and Harvard Law tenure, it might be time to go a bit political on them.

The best way to get political about it is to put forward a choice that, if rejected, makes it very clear that they are refusing to do their job as senators--then draw attention to this during the campaign. There are Senate elections this fall, too.

The fact that Sri was approved unanimously is a political point. Republican senators could expect their next re-election campaigns to feature accusations of flip-flopping for voting to approve the guy in 2013 and then shit-talking him in 2016.

Also, Sri Srinivasan would add some diversity to the Supreme Court -- he is from India (moved to the US as a young child) so would be first Indian-American on the court. His law degree is not from Harvard or Yale -- which is probably a plus as well.

making it likely that the more principled Republicans in the Senate would break with the hardliners on the issue.

I'm not holding my breath on that, though...

I'd consider appointing a reasonable moderate in their sixties, and getting them confirmed, a big win. Having a functional Supreme Court with five votes for "not crazy" would be a huge improvement over the last couple of decades.

I think it's very likely that the Democrats will win the next 2-3 presidential elections, which means we'll get more chances to replace arch-conservatives, against what will probably be less strident opposition. And if President Warren in 2027 gets to replace Obama appointee Moderate McOldiepants, well, I'll be pretty content with that outcome.

> I think it's very likely that the Democrats will win the next 2-3 presidential elections

Phonecall from 2019: we are in the most surreal timeline.

--Dave, swirliest ever, people are saying

I saw at least one semi-serious proposal that Pres. Obama appoint Anita Hill...

-- Steve thinks that'd trigger a few TIAs.

Oh, that's good.

Except that forcing a woman to work with her harasser is kind of not so awesome.

Ooh, quite; forgot he's still on the bench.

-- Steve felt it was from another era, and kinda almost is.

Oh it's all just so tawdry.

No recess appointments?

Well, they only last until the end of the next Senate session if not confirmed. I don't understand what a "Senate Session" means, really: 114th Congress indicate a fairly long time period, and the article said "no more than two years" but the Senate opens and closes for business all the time. Can someone enlighten me?

Edited 2016-02-14 02:25 (UTC)

True story, there was just a Supreme Court case in 2014 on the limits of recess appointments. National Labor Relations Board v. Noel Canning.

Anyway, a session of congress is not just the daily meeting. The formal session is the time that the congress is "open for business" and considering laws etc. The session ends when congress has decided that no more work is to be done, and adjourns "sine die" ("without a date") meaning they don't intend to meet again that year. Of course, they can change their mind, or the president can change it for them and summon a special session. But in general, a modern session of congress lasts basically all year, partially so they can prevent effective recess appointments. The 113th Congress (2013-2015) had its first session from Jan 3rd 2013, to Jan 3rd 2014, and that same day began it's second session: Jan 3rd 2014 to Jan 2nd 2015, at which point it was time to swear in the 114th Congress which began its first session on Jan 6th 2015. So Obama had less than a week to enjoy recess appointments... although any appointments he made in those handful of days would be in place for the next year, as a consequence of Congress's unwillingness to adjourn the session.

For recent congressional session dates, see http://history.house.gov/Institution/Session-Dates/110-Current/

Thanks to blatantly bullshit procedural nonsense by the Republicans, the Senate no longer goes into recess.

If the Republicans delay enough, perhaps President Clinton can appoint Obama.

She's gone on record saying she'd do as much, I believe.

That seems unlikely. Presidential candidates don't generally bind themselves in such a way.

A little bit of digging, and yeah, it's not quite as firm a commitment as some have been saying abouts the web. She just said she thinks he'd do a fine job in the position, really.

Whether he'd take the nomination or not would be another thing entirely, too.

Or he could nominate her now. She wouldn't agree to it, but the looks on a few faces would be worth paying to see.

On both sides of the political aisle!

Cruz and Rubio are already calling for Obama to leave the seat vacant and let the next President fill it (even though that would be the longest vacancy in court history by more than a 100% margin -- but then Cruz has already shown that he doesn't care about keeping the government functioning).

I think the GOP is totally screwed on this one. If they become so obstructionist that the vacancy stays open until the election, they will push a lot of independents towards the Dems. , both in the presidential race and down ticket. There are 24 Republican Senators up for re-election this year, and only 10 Democrats. If they don't, they will piss off a lot of their base, which could result in a lower turnout for the GOP.

Things are going to get weird with some of the cases before the court right now, but Scalia's death is a boon for the Dems in the November election.

I can't tell any more. I think a lot of the rules that have governed US politics for the past few decades are evaporating or in flux, and while those rules were mostly terrible, it also scares the shit out of me. The United States could be an autogenocidal fascist dictatorship five years from now, or in the midst of a civil war.

Those rules are evaporating because one party is dying. Did you think the Coalition was going to go gentle into that good night? Hell no. Not the sons and daughters of the Borderers.

Mitch McConnell has already stated the answer is "nobody". He's going to try to block all votes on a replacement for the remainder of Obama's term, because "the American people should have a say" in the nomination.

In other words, he's pretty much implying that Obama is not the legitimate President.

Meanwhile, Obama just made a brief announcement that he will make an appointment and expects them to do their jobs as well.

And the Very Serious Republican consensus seems to be gathering that Obama should hold off nominating anybody, for the sake of bipartisanship and healing and the good of the country and yadda yadda.

I'm sitting here trying to decide if, should a Democrat win in November, they'll try to keep the seat vacant until 2021. If they keep going and Ruth Bader Ginsburg or Stephen Breyer dies, they get a 4-3 majority back.

Breyer, Ginsburg and Kennedy are all likely to leave the bench one way or another in the next four years, which means that whoever wins the next election will get to shift ideology of the court firmly in one direction or the other regardless of who replaces Scalia.

The scenarios:

1) Obama gets a liberal on the court, Republicans win the election. By 2020 the court will be split two-thirds conservative.

2) Obama gets a liberal on the court, Democrats win the election. By 2020 the court will be split two-thirds liberal.

3) The Senate blocks all Obama nominees, the Republicans win the election. By 2020 the court will be split 7/9 conservative.

4) The Senate blocks all Obama nominees, the Democrats win the election. By 2020 the Court will be split two-thirds liberal.

So if the Republicans were really interested in "fairness" or whatever bullshit McConnell's pushing, they'd approve whoever Obama nominates and let the next President tilt the court two-thirds one way or the other. Instead they're aiming for option (3), which would give them an overwhelming majority that couldn't be swayed even if one or two of their nominees turn into the second coming of Anthony Kennedy.

I think it's likely that as long as the Senate is Republican-controlled, they will simply decide to confirm nobody appointed by a Democrat from now on, and it'll become the new normal that the Senate never confirms SCOTUS appointees from a President of the opposing party.

Just as it became the new normal that you need 60 votes to pass legislation.

I suppose they could even decide that they'll blanket-filibuster all nominees from the opposing party, meaning that the President would always need a 60-vote supermajority to appoint a Justice. But I suspect that instead the filibuster for Supreme Court nominees is going to go away the moment the President and Senate majority are of the same party. It's already gone for other political appointees (in fact, I think McConnell is doing this in part as payback for that).

If the Dems win the White House, I don't see Republicans holding control of the Senate. If they have the Vice President, the Dems only need to pick up four seats to take control (five if Sanders wins), which is entirely doable in a Presidential year.

But even if the Republicans retain control of the Senate while losing the White House, I don't think the Justices would sit quietly if half the Court goes empty. That would nearly double the remaining Justices' workload as they have to write more opinions and supervise more Circuit Courts. No matter how ideological they are (and remember, most of them try not to be openly), at some point they'll start demanding that Congress do its duty and confirm a qualified candidate.

Also, with any case that stalls at 4-4, the lower court decision stands without setting precedent. About 2/3 of the country is governed by courts that are majority Democrats, so policy-wise, it is bad for the GOP to leave a vacancy for too long. There are several cases pending right now where the GOP was counting on the Supreme Court to overturn lower court rulings.

But if Breyer or Ginsburg retire, the court goes to three liberals, three conservatives, and Kennedy as a swing vote, which is functionally the same as what it was last week. If Ginsburg and Breyer retire, it becomes three conservatives, two liberals and Kennedy occasionally creating a tie. And if Ginsburg, Breyer and Kennedy all retire, it goes to a straight 3/2 conservative majority.

in other words he's pretty much implying that Obama is not the legitimate president

That's been the Republican position since 2008 anyway, isn't it?

And not to be respected by anyone of whatever affiliation with a working brain, of course.

Remember that there's a lot of EPA regulation getting to the Supreme Court soonish. There's a lot of material consequence[1] riding on the composition of the court, since Congress is paralytic and not doing anything about climate change.

This particular appointment fight is unlikely to be about purely cultural issues.

[1] billions and billions of dollars, but that's not really an adequate descriptor

One suggestion going around is Bush appointee John E. Jones III. He may have been put on the bench by Bush the Younger, but is now better known for Kitzmiller v. Dover[1] and Whitewood v. Wolf[2].

[1] Teaching "intelligent design" is the same as teaching creationism, and as such violates the Establishment clause.

[2] Striking down Pennsylvania's ban on same sex marriage.

This congress? They might accept Orly Taitz, but anything else up to and including a necromantically revived Scalia would be rejected out of hand.

"Justice Roy Moore"

[shudder]

Nah, Orly is too liberal.

The WashPost noted today that by opposing an Obama nominee unreservedly, the Senate republicans have shot themselves in the foot; the state appeals courts mostly lean liberal, and a split supreme court ruling leaves the appeal court ruling that was escalated to them in place, so for the most part a slew of liberal state-level verdicts will be upheld.

Personally I think the best outcome is for them to stonewall angrily ... until Hilary's inauguration, at which point HRC can nominate Barack H. Obama to the Supreme Court. There's precedent: he's a noted constitutional scholar, and wouldn't be the first President to end up there ...

Nah, Obama would be a terrible choice. Teaching law for a couple of years is hardly sufficient qualification. The one president that became a Supreme Court justice was Taft. Before his presidency, he was Solicitor General and a federal appeals court judge. After his presidency, he became president of the American Bar Association and taught law at an Ivy League school.

I like Obama, but he's less qualified to be a Supreme Court Justice than Harriet Meyers was.

Besides, if you really want to fuck with the Republcans, I think you should be looking into who is the current best female Islamic jurist in the USA.

Given the mood of the Trumpist segment of the population, minority religious rights are going to need protection in the coming years.

Yeah, that's been making the rounds since the obituary went out...

May he rest in peace. My sympathies to his family and friends.

That's the best I can do, sorry.

Motion seconded.

I don't celebrate death. That said, Scalia was a contemptible piece of work. Having been appointed at the high of Reagan's popularity, with a Republican senate that gave very little vetting to his nomination and prior to the dramatic rise in senate cloture motions, Scalia was rubber stamped without true vetting. He then went on to be the uninformed right-wing and reactionary seat on the court, his principles dictated mainly by what would best uphold "conservative tradition" at the time, and often being scathingly insulting to his fellow justices when they disagreed with him.

Even should his replacement be delayed, and a Republican become president, there is very little chance a modern version of Scalia could be appointed. The court will be moved sharply to the left by his absence.

Is Alito really noticeably more liberal than Scalia?

On their records and their statements, yes. But that's because Scalia was a hard line right-wing religious nut-case about practically everything, not because Alito is notably progressive about much. It's the difference between a blazing fire, and solar fusion.

It isn't even that Alito and Roberts are noticeably more liberal that Scalia, but that they're noticeably more professional. Scalia was a transparent partisan who made decisions based on the effect they would have for his acquaintances or his pet ideas; Constitutional literalism was his rationale, not his driving motivation. Only Thomas is so bankrupt a judge currently on the court, and he doesn't have Scalia's intelligence, knowledge, or wit—traits he used pretty much for evil.

I liked Charlie Pierce's remembrance, which notes that once in a blue moon, Scalia could occasionally be a terrific voice in favor of civil liberties:

http://www.esquire.com/news-politics/politics/news/a42134/antonin-scalia-death-charles-pierce/

He thinks Scalia gradually slid into hackery.

That's an excellent essay, thanks. It's worth noting though that "in later years," when Scalia was disappointing, covers a good half of his time on the big bench. (Not that I think Pierce would disagree.)

I've seen arguments to the effect that it's Alito who's been the most consistently conservative (and some rankings have Clarence Thomas more conservative than Scalia, though my impression is that Thomas has had less influence, since he rarely asks questions or writes majority opinions).

http://www.theatlantic.com/politics/archive/2016/01/none-to-the-right-of-samuel-alito/431946/

That's the rub--influence. Scalia was highly intelligent, extremely well-written, and had an exceptional legal mind. (Just because he used those gifts for evil doesn't mean they weren't there.) I am sure that he was able to pull the other conservative justices even more to the right than they would be naturally, and now that force is gone. He was also an incredibly aggressive questioner during oral arguments, so that process will likely be very different in future cases. Scalia's death affects A LOT more than the likely vote split.

Wait, well written? He's not fictional.

It seems like a reasonable extension of the well-attested phrase "well-spoken".

"...and now in breaking news, President Cruz today announced the nomination of Justice Roy Moore".

There's always a bottom below.

"President Trump today announced the nomination of Vox Day and that Return of Kings guy."

Vox and Roosh declare they don't accept nominations from gamma males.

Couldn't have happened to a nicer guy at a better time.

I don't know, it might have been more symbolic for a lot of couples if he'd waited one more day.

Why? What happened today?

Valentine's Day and Scalia being against gay marriage, I think.

Yes, to Valentine's Day. And essentially anyone happily married. He went on record in his dissent against the DOMA decision that he thought marriage decreased rather than increased intimacy.

Honestly, if it had happened t him a couple weeks ago, it would be better for the environment.

Edited 2016-02-14 23:20 (UTC)

I won't say I was celebrating last night, but I WAS drinking a lot of "Scalzi's Tears":

Scalzi's Tears (Courtesy of KathrynT on Metaflter
2 ounces rye whiskey
1/4 ounce Fernet Branca
1/4 ounce Grand Marnier or Cointreau
A few splashes of water or soda
Serve on the rocks, garnished with a miniature rainbow flag

It's a bitter, Italian Old Fashioned made with sweet, spicy American whiskey.

Edited 2016-02-14 23:20 (UTC)

https://twitter.com/JusticeBlaine/status/698683413859962880

Justice Wainwright ‏@JusticeBlaine Feb 13
Antonin #Scalia requested cremation in his will, but millions of women will meet tomorrow to discuss if that's really best for his body.

Antonin Scalia, U.S. Supreme Court justice, dead at 79

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