Senior U.S. Supreme Court Associate Justice Antonin Scalia found dead at West Texas ranch – San Antonio Express-News


Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.

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150 Responses

  1. Avatar Zac says:

    Good night, sweet homophobic corporatist prince.Report

  2. Avatar Saul Degraw says:

    Let’s see how long the Senate blocks Obama’s nominee. This could be a blood bathReport

    • Avatar greginak says:

      I’m betting it will be standard among the R prez candidates that the Senate shouldn’t confirm any nominee. Cruz has already gone there. Maybe i’m wrong but there will be a very strong push to refuse any nominee.

      I’m sure the “OMG Obama has Scalia murdered” memes have been rattling around the nut o sphere already.Report

      • Avatar Stillwater says:

        Maybe Scalia was the target of Operation Jade Helm all along and The True American Patriots were duped into pulling the wrong thread.Report

      • Avatar Morat20 says:

        They want a year with an empty seat instead? Highlighting to the less-motivated Democratic voters what they stakes are?

        Not sure that’s a winning move either.Report

      • Avatar LeeEsq says:

        Either way the situation works out badly for the Republicans. If they refuse to nominate anybody than they come across looking obstinate. This will piss off the non-political. It will also gives the Democratic Party a big issue to mobilize voices on. Decisions that are 4-4 splits mean that the holding of the Circuit Court stands and this is going to favor liberals to. If the Republicans confirm Obama’s nomination than the Court shifts towards the liberal justices and they end up looking weak and demoralizing Republican voters. Unless the Republicans win the 2016 election, it is a big lose-lose situation for them.Report

        • Avatar Marchmaine says:

          No, you are looking at it they way you want it to be, not the way it is.

          The Republicans will not allow a vote on a nominee; there’s no reason for them to. The Presidential election only has an upside for them or, at the worst, status quo.

          Simply stating that letting the people vote on the next president will diffuse the handwaving you think “obstructing” will cause. Further, you assume that all the independents want an Obama jurist… I think you greatly overestimate the unanimity here… a certain segment (large I would wager), finds the balance of the court as it stands is somewhat stable.

          Honestly, the smart move for Obama and the Democrats is to lock-in the shift from the Right by offering a consensus nominee. In fact, the really wily move is to ask for a list from McConnell as a starting point. If McC gives him a list of Scalitos, then he asks for another. And another. All the while he looks reasonable, puts actual pressure on the Republicans to show their cards and attempt to govern, and he can play for a centrist wild-card – which at least locks in a move from Scalia. That’s the very best the Democrats could get in 2016.

          If a republican wins, the Democrats are faced with Scalissimo Grande.

          Why would the Republicans settle for a centrist (or center-right) jurist? It all depends on how they feel the 2016 Senate races are shaping up… right now, they can look at the contests and feel confident of 50 seats, and a dog-fight in 3 seats… so the calculus today is a win in the Senate… but if that starts to wobble, then the nuclear option and up/down Clinton appointee on 51 votes might be enough of a threat to take half a loaf.

          Either way, there’s no Democratic leverage for 2016, and rationally a 50% chance at a big loss with a much lower chance for a commensurate upside. Take the win and move the needle – that’s the smart play for the democrats.Report

          • Avatar trizzlor says:

            >>The Presidential election only has an upside for them or, at the worst, status quo.

            Do you think the GOP has more leverage now with Obama to push for a centrist justice then it would with Hillary after a year of flagrant obstruction?Report

            • Avatar Marchmaine says:

              Right now, yes. Uncertainty has a seat at the table. If Hilary wins, then its really just a stalemate, with the advantage to Hilary.Report

              • Avatar trizzlor says:

                Okay, I guess I misunderstood your argument that there’s no Democratic leverage right now. It seems self-evident to me that Republicans have more leverage right now for Obama to nominate a moderate than they would have with [Hillary + mandate + 1 year of black president / empty seat optics]. That doesn’t mean they shouldn’t give it up for a roll of the dice on a Cruz presidency, just that the situation does shift. But when I bring this up with my Republican friends something snaps in their brain after I say “but if Hillary wins then…”.Report

              • Avatar Marchmaine says:

                Right… I’m not swayed by the optics argument given that if the Republicans are united in opposition to a Ginsburg type pick (let’s say), then they can vote every 3-4 months and get a new nominee each time. It is possible for them to win the optics argument (not saying they are competent to do so, but that there’s an obvious way they could).

                But yes, if they lose the election, then their position weakens immensely. However, the flip side is true too… winning the election and keeping the senate, whelp… every nominee deserves and Up or Down vote, right?Report

              • Avatar Stillwater says:


                That part’s clear. The downside risk is in the politics of playing politics with the SC appointment: the logic of obstructing only makes sense if it results in a higher likelihood of Trump (heh!) winning the Presidency. That part of the equation remains to be seen, but if they choose that path then the leverage clearly (in my view) shifts to the Dems who can leverage against that obstruction to really damage the GOP amongst swing voters and independents as well as rally the Dem base. At best, the only result electorally is a motivated GOP base, with everyone else more than likely opposing them. Which is a net-losing strategy, seems to me.

                Obvs we disagree about this, but once they take that first step towards obstruction in practice, the game is on and frankly I don’t see how it plays out very well for them over the long haul. They risk not only the Presidency by playing that game, but also a more moderate SC appointment as well. And really, when viewed thru the lens of SC appointments, the Presidency is the primary goal since there’ll likely be two more appointments made by the next President. There’s more at stake wrt SCOTUS right now than merely replacing Scalia.Report

              • Avatar Marchmaine says:

                I hear you. I’m just trying to add some commentary from the other half based on my experience as a professional negotiator.

                No doubt there will be a fight to determine the narrative, but not having the votes to get your super-preferred nominee through the process can easily be spun against the “obstruction” charge.

                In the good ole days, you’d just look to peel of 4 votes, that’s all the Democrats need… but even to do that means a nominee of somewhat less than Liberal Unicorn perfection. How much less? Depends on things I don’t know.

                Plus, on what grounds is “obstruction” a motivator to change the negotiating stance of your opposition? They have the actual votes, the Democrats don’t, and, from their backers the “obstruction” is a valid exercise of checks and balances. So they get rewarded in their constituencies for doing what they have the simple power to do. There’s no heroic stand needed.

                Having the full force of Rachal Maddow’s ire (re-)directed at them isn’t the motivator some here think it is.Report

              • Avatar Stillwater says:

                I agree Rachel Maddow isn’t a worry. Restricted to purely partisan considerations I agree with your reasoning. I’m suggesting that non-partisan interests are gonna come into play in a big way, and those interests will align in opposition to the GOP insofar as the obstruction is viewed in purely political terms, and for a whole host of reasons.

                That doesn’t mean the GOP won’t take the obstructionism all the way to January, of course. But they’re gonna have a hard time (in my view) spinning that move to generate more votes in November than they would otherwise.

                ETA: One scenario that I think is likely is that the GOP will play the obstructionist card thru the primaries as leverage to get a better-then-Trump candidate nominated and at that point will permit an upperdown vote.Report

              • Avatar Marchmaine says:

                Fair enough. I just think you are greatly over-estimating what you call the non-partisan alignment – and what they will do – and what obstruction means when its not obstruction (assuming they vote).

                Though you lost me at the ETA part… I’m not sure what folks like McC will be able to do to leverage the primary electorate?

                In fact, I’m waiting to see how the Donald approaches this. My uninformed guess is that he will finally rip away the “no-litmus test” facade and tell everyone that not only will there be a litmus test, but he’ll actually hold the nominee’s family hostage for as long as he is on the court (and he, Trump, is president)… one family member executed (or maimed if a minor decision) for each stray vote. Litmus tests are for pussies.Report

              • Avatar Stillwater says:

                I just think you are greatly over-estimating what you call the non-partisan alignment

                It’s not an “alignment” – that’s a partisan-oriented way of thinking about it. I’m talking about all the people who’s interests would be negatively affected by the disruption of normal government functions for purely partisan reasons, which includes just about everyone other than the conservative base and GOP politicians.

                I could be wrong, acourse. 🙂Report

              • Avatar trizzlor says:

                >>But yes, if they lose the election, then their position weakens immensely.

                Yeah, agreed, but the GOP is proceeding – as usual – as if obstruction has no downside. It’s obviously too early to tell, but I wouldn’t be surprised if this goes down just like Obamacare and gov’t shutdown: formally recusing themselves from any negotiation just means the thing goes through without any of their, potentially moderating, input. Hillary wins, nominates Obama, Republicans look back regretfully to a time where Sandra Day O’Connor would have been Obama’s starting offer.Report

          • Avatar Stillwater says:

            Either way, there’s no Democratic leverage for 2016

            The leverage the Dems have is the GOP acting on the logic you propose thereby handing the Preznitcy to them. The GOP isn’t on a free-roll here. There’s a very real – and likely – downside risk in taking obstructionism all the way to next January, seems to me.Report

            • Avatar Marchmaine says:

              If I recall, the common wisdom is that Presidency years see elevated Democratic turn-out. Do you not think that Scalia’s replacement fight will elevate republican turn-out? Perhaps even when folks might sit-out a Cruz/Trump presidential bid?

              I don’t think you can call the motivation factor in favor of one side or the other (as of yet).Report

              • Avatar Morat20 says:

                Actually, it’s likely to elevate Democratic turnout. Republican turnout is far more steady in the first place, and they’re almost certainly going to be facing the AntiChrist Hillary, who is replacing the Muslim Antichrist Obama.

                I suspect putting SCOTUS front and center will benefit Democratic turnout, as voters who might not be as enthusiastic about Clinton go “Oh crap”.

                On the other hand, the GOP Congress is really trying hard to make sure the 2000 notion of “Eh, how much harm can he do, really?” thing doesn’t take over voters again. The whole “not a bit of difference between Bush and Gore” thing is highly unlikely to play out again this year.Report

              • Avatar Marchmaine says:

                Perhaps… but my point isn’t that this is a net gain for the Republicans, just that neither side can predict one way or another yet… which seems to run counter the prevailing trend here.

                I think it pretty obvious that this is going to motive lots of people… to what effect? I can’t quite say just yet.Report

          • The Republicans will not allow a vote on a nominee; there’s no reason for them to.

            Remember “Every nominee deserves an up or down vote?” Neither will anyone else in the entire, supposedly liberal MSM.Report

            • Avatar Marchmaine says:

              Yes, personally I think that is the proper approach to all appointments – for the sake of good governance.

              All in favor of nominating X say “Aye” [46 ayes]

              All against say “Nay” [53 nays, 54 if Rubio makes the vote]


              You guys are forgetting that this is not a 40 vote minority filibuster scenario.Report

              • Avatar Michael Cain says:

                When they agreed to stop the filibuster on appointments, weren’t Supreme Court justices excepted? So it still takes 60 votes to bring it to an actual floor vote.Report

              • Avatar Marchmaine says:

                That’s how I remember it as well, though I could be entirely wrong.

                Either way, there’s no need to change the rules in 2016. Assuming party agreement on the general strategy, the Republicans can vote a dozen times on Nominees.

                But, come 2017 and a Republican president, I could see a rules change. Similarly, if this really does alter the Senate races nationally and the Dems end up with 51 seats… I fully expect a rules change then as well. The Scalia replacement is worth it from both sides.Report

              • I see a difference between voting nominees down, even repeatedly, and preemptively announcing that no one is getting through.Report

              • Avatar Marchmaine says:

                Sure, I’ve no idea what prompted McC to comment so soon… its not like Obama could sneak the nomination past him. I blame twitter. Sometimes the best tactic in a negotiation is not saying anything at all.

                Possibly too, there aren’t 51 votes to vote as a block? Maybe he knows this already? These are things we don’t really know, but surely a simple acknowledgment of Scalia’s passing with a bland statement about considering nominees with due diligence should have been easy enough for a Saturday night.Report

              • The “Hell, no!” storm was inevitable, particularly with the debate being the same day, Getting his name attached to it allowed no delay.Report

      • Avatar Troublesome Frog says:

        I’m hoping the inevitable “Obama killed Scalia” nonsense gets enough legs that all of the GOP candidates get asked about it and have to tapdance around it to avoid losing the conspiracy nutter vote.

        Those moments where the split between reality and what the extremist primary voters believe has to be reconciled or dodged on camera are delicious.Report

    • Avatar Morat20 says:

      That was my thought as well. The knives are gonna come out over this. Because it’s 11 months until a new President takes office which is too long for the Supreme Court to have a vacancy. (If it was any other court, sure they’d stall for a year hoping for a GOP President).

      The GOP isn’t guaranteed either the White House or the Senate in 2017. It’ll be interesting to see how they game it out.

      Assuming they don’t default to mindless obstructionism, of course.Report

      • Avatar Don Zeko says:

        Assuming they don’t default to mindless obstructionism, of course.

        That’s an awfully big assumption, I thinkReport

        • Avatar Morat20 says:

          It bites them on the tail because you can’t overturn crap with a 4-4 vote. There’s some fun cases up this year.

          PLUS leaving it empty gives Democrats a huge issue to run on and plays into the GOP’s already existing damage on obstructionism. They’ve shut down the government, they’ve threatened US credit, they’ve tried to sabotage foreign relations, and now they’re going to leave a SCOTUS seat empty?

          “Do-nothings” indeed.

          (Not that it matters. The whole 4-4 thing is what’s gonna hurt. But shooting themselves in the foot is par for the course for the GOP Congressional members)Report

  3. Avatar veronica d says:

    Well golly.Report

  4. Avatar Bad-Ass Motherfisher says:

    I feel really bad about this, but the rest of my day is all smiles.Report

  5. Avatar Oscar Gordon says:

    I won’t celebrate his passing, but I won’t pretend to be upset at his loss from the court, if for no other reason than to have hope that the professionalism of the police might some day be called into question.Report

  6. Avatar Chip Daniels says:

    Everyone improves the world.
    Some by entering, some by exiting.Report

  7. Avatar Jaybird says:

    Welp, we’ve now got ourselves one hell of an election year before us.

    Questions in my head:
    Will the Senate obstruct freaking everything the way that Bork was obstructed?
    How will that affect the Senate races come November?
    Will Obama nominate someone who can get through the process?
    How will that affect the Presidential election?Report

    • Avatar rtodkelly says:

      My best guess answers to each:

      1. Yes, and more so. The message with Bork was, “try someone more moderate instead.” I predict the message here will be, “no one you nominate will get through.”

      2. Very little. GOPers in states where it could make a negative difference will make noise about wanting to get someone confirmed, run as party outsiders.

      3. No. Not because he won’t nominate a moderate, but because there will be no nominee allowed through this process.

      4. I expect it will have many impacts, but the two most obvious ones I see: First, I think it will have a huge impact on turnout. Second, I think it will put whoever the nominee for the GOP in a very difficult position in that I think it will become impossible for them to tack to the middle even a tiny bit without losing significant base support.Report

      • Avatar rtodkelly says:

        Oh, and I will add this: I give Paul Ryan 60 days tops before he regrets taking the job as speaker.Report

        • Avatar Burt Likko says:

          I don’t understand. As Speaker, Ryan has as much formal influence over the process as I do. President nominates, Senate confirms, House sits back and watches.

          Are you suggesting Ryan now wishes he were running for President? Because of a vacancy on SCOTUS nine months before the election?Report

          • Avatar rtodkelly says:

            My prediction is that this fight is going to deepen the differences and hard feelings between the party establishment and the upstarts. I think in short order, unless the establishment utterly cave into the upstarts in terms of how they should handle this process, all of the agreement Ryan brokered with the upstarts before he took office are declared null and void by those who made them.

            If Obama were a cagey pol with guile — and I believe that he is — I would not be surprised if he were to nominate someone so moderate as to be surprising to the left, just to deepen the cleave in his opponents. (Not saying he will. Just saying it wouldn’t surprise me.)Report

            • Avatar Chip Daniels says:

              If he plays long ball (which I suspect he is) he would aim, not at persuading some GOP Senator, but at persuading the average apolitical voter that the GOP is nuts and not to be trusted.
              So even if the nominee goes down in a fiery wreckage of a filibuster, the Dems win.Report

            • Avatar Alan Scott says:

              Obama’s genius cagey pol with guile appointment: Sandra Day O’Connor.

              My understanding is that she retired to spend more time with her ailing husband, who has since passed away. Any suggestion she is unqualified to serve is obviously absurd. And yet, despite being a Reagan appointee, she’s not conservative enough for today’s Republican party.Report

              • Avatar rtodkelly says:


                That is just genius.Report

              • Avatar Dan Scotto says:

                Maybe I’m in the minority, but I really think the Republicans would accept O’Connor, and I would be impressed by Obama if he went this route: she is genuinely a perfect choice for the moment, in terms of the “broad interest of the republic.” She would almost assuredly retire under the next president, so there’s quite a bit of cover there.

                I think the trick for Obama under the circumstances would be to find someone similar to O’Connor who was 30 years younger.

                Really, Obama has two choices:

                1. Go for a moderate and try to fracture the Republicans or make them look intransigent.
                2. Go for a strong liberal–particularly a historic first–in an effort to increase turnout.

                Or, perhaps option 3: Nominate a strong liberal who will be portrayed as a moderate.Report

              • Avatar Burt Likko says:

                It will be option 3. And the nominee will be in her fifties. Ive little doubt that there is a large stable of potential nominees for the President to choose from — especially if he knows there’s going to be a fight grounded on something other than the nominee’s qualifications. That being the case, it helps democrats if the nominee is awesomely qualified.

                With that said, I do admire Justice O’Connor immensely and would love to see her back on the bench. But it’s not going to happen.Report

      • Avatar Chip Daniels says:

        Agreed on all points.

        We will be hearing a lot, I mean a WHOLE lot, about some “moderate” who could be acceptable to both the Democrats and Republicans.

        Such a creature just doesn’t exist anywhere, outside David Brooks’ head.Report

        • Avatar Burt Likko says:

          Lets war game this out.

          1. Obama finds an awesome judge.

          2. Senate Republicans say no way she’s too extreme and liberal. (Are either Cruz or Rubio on the judiciary committee?)

          3. Senate Democrats point out how gorgeously moderate and smart she really is.

          4. Bases of both parties get all fired up over the new football in play.

          5. Nomination fails. Or it succeeds.

          6. Democrat wins in November anyway because the realistic electoral college projections mean Dems need to win only one of Florida or Ohio, which they likely will anyway no matter what.Report

      • Avatar Mo says:

        #2: Isn’t 2016 a bad year for Republicans in the Senate, the same way 2014 was bad for Democrats? 2014 was bad for Democrats because a lot of marginal Ds that won tossups in the 2008 wave were up for reelection. This time it’s a bunch marginal Republicans who are in the toss-up mix. Do you really think Mark Kirk is going to win over folks in Illinois by being an obstructionist? Ayotte is in a tight battle, Toomey is in a bluish state and Ron Johnson and Portman are going up against familiar names. Aside from the open Harry Reid seat, there’s nothing that borderline for the Democrats.Report

    • Avatar Stillwater says:

      1) The Senate won’t obstruct: conservative Senator’s will.
      2) Depends on whether the GOP’s obstructers can maintain the ramparts til then.
      3) By definition, no.
      4) It will heighten the interdictions.Report

    • Avatar Morat20 says:

      No, because what Bork went through was nothing even remotely like what’s gonna happen.(IIRC, he lost the committee vote then lost the Senate vote. He didn’t even get 50 votes. On the other hand, he actually got a vote. Which is more than a lot of federal nominees can say these days. Bork wasn’t obstructed — Bork had a nasty confirmation process, wherein his poltiical philosophy was shredded. It was a bloody fight, but he got his votes in a relatively normal manner.)

      It won’t, really.

      No, because Obama could nominate anyone, including the Zombie Corpse of Reagan, and it wouldn’t get through. The mere act of nominating a candidate will make that candidate unsuitable.

      Probably worth a point or two to someone — I lean Democrats, because they look more complacent at the moment and rely on voters with more variable turnout. A reminder of what the stakes are might push people to vote, especially with ready-made “GOP unable to handle basic government functions” line.Report

    • Avatar Michael Cain says:

      Will Obama nominate someone who can get through the process?

      Off on somewhat of a tangent, will Obama nominate someone who’s not currently sitting on either the DC or 2nd Circuit Courts? Perhaps the only thing in the world that Justice Thomas and I agree on is that diversity means more than just race and sex, and it’s a Bad Idea to have a SCOTUS whose outlook is shaped entirely by legal/judicial experience in the NE urban corridor.Report

    • Will the Senate obstruct freaking everything the way that Bork was obstructed?

      You mean by holding hearing and scheduling an actual vote?


      (In other words, Bork was voted down, He was not “obstructed”. You know that as well as I do.)Report

  8. Avatar greginak says:

    FWIW McConnell has issued a statement saying the next prez should get to nominate the replacement. Color me unsurprised.

    Scalia got a 98-0 pass in the Senate. After Bork Ginsburg has to bail out due to admitting smoking pot. (Oh the 80’s) Kennedy got a 97-0 pass in the senate in Feb 88 ( an election year).Report

    • Avatar Stillwater says:

      FWIW McConnell has issued a statement saying the next prez should get to nominate the replacement.

      Appealing, no doubt, to that long standing precedent whereby Presidential terms are shortened by 11 months when a Supreme Court justice’s death replacement is on the line.Report

    • Mr. McConnell, though, said voters must be given a say in the matter, and that means picking a president who will nominate the replacement.

      We already did that. Twice.Report

      • Avatar Morat20 says:

        Yeah, that line got me too.

        I saw someone reference a tweet or blog post that joked that “Black Presidents only get 3/5s of a term” in response.Report

  9. Avatar Burt Likko says:

    I often disagreed with Justice Scalia, but also agreed with him a lot.

    The Court has never had a writer of his ability, nor a greater practitioner of the incisive question at oral argument, and and may never again.

    I, for one, will miss him.

    I am NOT looking forward to the nomination fight: there will be a nomination, for sure. The Court officially begins business a month before the election and a “wait for the new President” position means “leave the court without a full bench for at least three of its none-month term.”

    This will leave Barack Obama as the most influential President for SCOTUS since Ronald Reagan, at 4 nominees each.Report

    • Avatar rtodkelly says:

      This is assuming he gets a nominee confirmed, which I would bet he will not.Report

      • Avatar Stillwater says:

        It seems more like slightly better than a 50/50 to me. There will be an unbelievable amount of political pressure imposed on the obstructionists, especially the couplefew people running point on it, which will necessarily have Presidential electoral implications as well. Personally, I’d bet that Obama will get someone thru. Not the first person (make that a throwaway pick, Big O!), and not the second (floated) pick either. Third time’s the charm. All happening prior to the general election.

        {{That’s my story and I’m gonna stick to it.}}Report

      • It will be interesting, in a “stock up on food and ammunition” sort of way, just to see how enthusiastic the obstructionism will be. Pessimistically, I wonder if the USA will have an 8-person Supreme Court until either the GOP controls the Oval Office or the Democrats control both the Oval Office and Senate.Report

        • Avatar El Muneco says:

          If Ted Cruz is both the Presidential nominee and the face of the Senate opposition to Obama’s choice, I’d say it’s even odds that control will be unified in January ’17 – one way or the other.

          I mean, “It’s about the Supreme Court, stupid” was always going to be the heart of the Dem GOTV effort in rounding up the people who either are pouting that their fave didn’t win the primary, or who can’t be arsed because the nominee isn’t X enough for them (for several conflicting values of X). Having it in the papers every day with a picturesque unifying figure linking the two races is practically free advertising for both the Presidency and the coattails.Report

    • The GOP is the party of run the government like a business, so they want to leave the Court understaffed and expect the people that are left to do the extra work without complaining. But they’re also the party of the math doesn’t matter, so none of them have figured out that eight is an even number.Report

    • Sotomayor + Kagan + hypotherical = 3. Reagan also had three, unless you count the promotion of Rehnquist. Nixon had 4.Report

    • Avatar Kazzy says:


      Four nominees? I’d count this as Obama’s third: Kagan, Sotomayor, and this one (assuming he gets it through). What/who am I missing?Report

    • Avatar Brandon Berg says:

      This will leave Barack Obama as the most influential President for SCOTUS since Ronald Reagan, at 4 nominees each.

      Kagan, Sotomayor, Scalia’s replacement, and…?Report

    • Avatar Brandon Berg says:

      Daaaamn. Roosevelt had eight. He got to pack the court after all.Report

      • Avatar Jesse Ewiak says:

        Being President for 12 years when the SC appointees tended to be older and people tended to be dead sooner helped with that.Report

        • Avatar Morat20 says:

          Eh, life expectancy at retirement hasn’t really changed that much. The big boost in life expectancy comes from lowering infant mortality.

          It was probably more the 12 years thing.Report

  10. Avatar Jaybird says:

    On the upside, if Obama names a replacement for Scalia and zhe gets through, we have a shot at an election that isn’t the most important election of our lifetimes.Report

  11. Does anyone know where Scalia’s hunting buddy Dick Cheney was at the time?Report

  12. The execrable David Bernstein (of The Volokh Conspiracy) is at it already: This is exactly like when the GOP wouldn’t vote to confirm Abe Fortas in 1968, except that that was because they rightly suspected Fortas of corruption, and Obama hasn’t even nominated anyone yet. Oh, and it didn’t leave the Court short-handed, because Earl Warren delayed his resignation until he could be replaced. But otherwise, exactly the same!Report

    • Avatar Stillwater says:

      Well, it’s only right. I mean, Scalia cleverly died during the primaries, which are obviously part of the whole election cycle thingy, so it wouldn’t be fair to him to just let the current president appoint his replacement and all…Report

  13. Avatar Stillwater says:

    Caught about 45 minutes of the GOP debate, and wowza, what a train wreck.

    Trump won, obvs.Report

    • Avatar Don Zeko says:

      If you can win a Republican primary debate by talking about how Bush lied to get us into Iraq and failed to keep us safe on 9/11, I need to go sit down in a room and think for a while.Report

      • Avatar Stillwater says:

        If success in the GOP primary weren’t determined by a schoolyard bully logic, I’d say Rubio won the debate. But Trump called out the GOP mythology pretty hard and the only responses were gasps and groans and accusations about “how dare you insult the great legacy of blah blah blah”. Rubio was the only one who scored any jujitsu points against Trump’s braying, in my view. Cruz was damaged (by Trump and Rubio – Rubio’s line about Cruz not speaking Spanish was a pretty good shot/trap and had me laughing for far too long) and Jeb foolishly floundered at Trump’s game, clearly being no good at it yet trying to play along.

        It was great fun!Report

  14. Avatar Morat20 says:

    Per Scotusblog

    The passing of Justice Scalia of course affects the cases now before the Court. Votes that the Justice cast in cases that have not been publicly decided are void. Of course, if Justice Scalia’s vote was not necessary to the outcome – for example, if he was in the dissent or if the majority included more than five Justices – then the case will still be decided, only by an eight-member Court.

    If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four. In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case. Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”

    He goes on to note this might effect cases like the mandatory union dues case, the “one man one vote” thing they decided to hear coming out of Texas (the one challenging districts drawn by population as a whole, claiming it should be by voters only), the latest challenge to the ACA’s contraceptive mandate (which is, I think, the “filling out a form claiming a religious exemption means that the whore will then get contraception through another party, so I’m still party to a sin!), and the challenge to the Administrations’ immigration rules.Report

  15. Avatar Jaybird says:

    Does Hillary have an opinion on whether Obama should pick the next judge?Report

    • Avatar Kazzy says:

      I saw a quote where she called out McConnell pretty hard for his remarks. So I’d venture to guess that she thinks Obama ought to select a nominee.Report

      • Avatar Jaybird says:

        She’s being smart, then.Report

        • Avatar Morat20 says:

          No, she’s being an adult in possession of basic facts taught to children in schools.

          The President nominates justices. It’s part of his job. It’s a very clear part taught to school children. Ergo, Obama should nominate someone.

          Now, I could see some wiggle room if it was after the election — and even then, I’d suspect that if it was November or December, Obama would probably nominate Clinton’s pick just to get the process started. If it was January, they’d just wait a month. Then you can talk about smart or dumb politics or moves.

          But right now, in February of 2016? The current President fills the slot. It’s the job, written in black in white in the Constitution. Unfortunately, the Founding Fathers never actually considered a case wherein the Senate would refuse to hold votes, so……


          • No, she’s being an adult in possession of basic facts taught to children in schools.

            Which, compared to most politicians these days, counts as smart.Report

          • Avatar Stillwater says:

            If I may…

            Jaybird meant she’s being politically smart (rather than intellectually smart) in that she’s indicating that she won’t play politics with the SC nomination.

            Which is smart, seems to me. Politically.Report

            • Avatar notme says:

              No, she’ll play politics with it but just won’t be as obvious about it.Report

            • Avatar Morat20 says:

              That makes a bit of sense, but….how can you tell that from the default case?

              The default case being “This SCOTUS thing proceeds as normal” (which is the current President nominates a successor) — which is identical to Clinton playing smart “I leave that to the current President” and Clinton playing politics “I leave that to the current Democratic President./Screw you, McConnell and ooops, looks like the 5-4 conservative majority just swapped”.

              Literally her options are “Proceed as normal” and “Oh no, let’s go ahead and make a HUGE exception, leave the seat empty a year, so maybe I can nominate someone” — the latter was just a non-starter, even if we had a President Romney and a dead liberal justice.

              So I suppose it’s lucky for Clinton that being “smart” and “doing the normal thing” and “adhering to basic Constitutional principles and centuries of practice” is all the same thing, but I think it can’t be stressed enough — the McConnell option, of waiting a full year, is entirely unprecedented.

              He’s flat out on record as saying “We will accept no nominees, regardless of quality” which is right up there with deliberately defaulting on the debt in terms of sheer “WTF dude, that’s your JOB”.Report

              • Avatar Jaybird says:

                Well, what does the Constitution say?

                [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

                So it looks like the Senate could, technically, be doing its job by holding votes and having every vote be a no vote.

                The problem with what McC is doing is saying that sort of thing before he rustles up 51 votes.

                Which, honestly, tells me that he knows that he’s going to cave prior to November and thus has to make noises for the base beforehand.

                Which is only smart in the short term.Report

              • I will be surprised if hearings are even held, since failing to do that is the traditional way to hold up nominations.Report

              • Avatar Jaybird says:

                Depends on the nominee.

                Someone as dull as Kagan? They will delay hearings.
                Someone who might be tricked into saying something interesting (such as Sotomayor)? They will have them.Report

              • Avatar Burt Likko says:

                Speaking of Elena Kagan, did you know that Scalia solicited her nomination, by name?

                David Alexrod has that story at CNN. Most illuminating about the man, and about the Court.Report

              • Similarly, from Wikipeida:

                [Ruth Bader] Ginsburg was recommended [for the Supreme Court] to Clinton by then-U.S. Attorney General Janet Reno after a suggestion by U.S. Senator Orrin Hatch.Report

              • I know! The GOP won’t hold hearings, so the Dems will have their own, unofficial ones, and Limbaugh will call the nominee a slut.Report

  16. I am hoping that Obama nominates Sri Srinivasan, because I’m looking forward to see some heads explode at the prospect of a Court with 5 Catholics, 3 Jews, a Hindu, and still no Protestants.Report

    • Avatar Burt Likko says:

      Elsewhere I’ve expressed admiration for Judge Srinivasan’s C.V. and political value as a nominee. He makes a lot of sense from a lot of perspectives.

      As for getting him through, i read an interesting theory on Volokh this morning: Obama recess-appoints a super-liberal judge and offers for full lifetime appointment a more moderate judge. I know just the guy who meets the description of the older “temporary” Justice that Republicans will be so anxious to get off the bench that they’ll hold hearings and a vote for Judge Srinivasan.

      The name of that judge is Stephen Reinhardt.Report

      • Avatar Morat20 says:

        In terms of sheer schadenfreude, the GOP successfully obstructing a nomination only to have President Clinton nominate Obama would be…..ideal.

        In more realistic terms, you’d think Judge Srinivasan — who sailed through his lower court confirmation something like 97-0 just a handful of years ago would be an easy pick, but somehow I suspect that a past 97-0 vote will simply not matter.Report

  17. Avatar Burt Likko says:

    The Notorious RBG offers a moving eulogy for her friend and ideological opposite. 100% class. And there is little doubt that had it been reversed, Scalia would have offered similar sentiments for her.

    A shame that this spirit of productive disagreement between smart people who recognize good faith in one another seems confined to the courts.Report