Scalia is Dead, Long Live the King!

[The Man]

Originally Posted by AynMisesLibertarian

lol you are so sick , you celebrate an human being death just because it happen to be a political opponent

What are the odds that somewhere on the internet is a post where AML has celebrated the death of a political opponent? I'd offer a €200 wager just for poetic justice, but I doubt anyone here would be willing to offer that much on such a sucker's bet. Plus I don't really have €200 to wager, but technicalities.

Anyway, it's not so much Scalia's death that people are celebrating as the fact that he will no longer be a Supreme Court Justice. It just so happens that it took his death to make that happen, due to the perverse system of lifetime appointments and the fact that Scalia would only have given up the position when it was pried from his cold, dead fingers. I mean, I'm sure somewhere on the Internet are people who are also glad he's dead (and I can't say I entirely blame them, since Bush v. Gore indirectly resulted in the deaths of over 500,000 people thanks to the Iraq War and other atrocities), but it's mostly the Supreme Court vacancy people are celebrating. And the fact that public sector unions, the environment, a woman's right to an abortion, and countless other things are no longer nearly as much under threat as they were a couple of days ago.

Edit: Some articles on potential replacements for Scalia.

Who will Obama choose to replace Antonin Scalia? Here are 7 of the strongest candidates. - Vox
Ten Potential Democratic Supreme Court Nominees Who Aren't Named 'Sri Srinivasan' | ThinkProgress
The Supreme Court Farm Team - The New Yorker (caveat: this was written by Jeff Toobin, whom Matlock has described as a "roaring dumbass")
The Court in a second Obama term : SCOTUSblog
How the politics of the next nomination will play out : SCOTUSblog

Also, article from SCOTUSblog on recess appointments: Is a recess appointment to the Court an option? (UPDATED) : SCOTUSblog

[Stormlight]

[Stephen Maturin]

Originally Posted by AynMisesLibertarian

lol you are so sick , you celebrate an human being death just because it happen to be a political opponent

Aren't you the candy-ass who wished "good cancer" on your "political opponents" here at ? Why yes, you are indeed that candy-ass.

Besides, we ers are lame when it comes to celebrating Scalia's death. THIS is how one properly celebrates Scalia's death:

It doesn't matter if dead Supreme Court Justice Antonin Scalia loved his family and was loved by them. It doesn't fucking matter if Justice Ruth Bader Ginsburg was best buds with him. It doesn't fucking matter that he was smart or funny or that he had a great singing voice or that he could cook like your Italian grandma. It doesn't fucking matter if there were times that Scalia ruled on the side of liberals in free speech or warrantless search cases. None of that fucking matters. Because Antonin Scalia was a poison to the nation, a dick who was proud of how dickish he could be, and the thing that most of us on the left felt upon hearing that he was dead was relief and "Oh, thank fucking Christ." The only difference between you and the Rude Pundit is that you might have felt a little guilt after thinking that. As for the Rude Pundit? Fuck dancing on Scalia's grave. He's ready to have rough anal sex on it before the dirt even settles and then wipe himself off with the pages of a Bible.

-----------------

Well, it looks like Obama is steering clear of the recess appointment thing. Tom Goldstein at SCOTUSblog speculates that Obama will nominate AG Loretta Lynch, and that the full Senate will ultimately vote on Lynch's nomination and shoot it down along party lines. To his credit, Mr. Goldstein appears to know that he's talking of his ass.

Elsewhere at SCOTUSblog, Amy Howe provides this epic takedown of Sen. Chuck Grassley's cowardly lie that refusing to confirm SCOTUS nominees during presidential election years is "standard practice." Fuck you, Grassley. You're a lying piece of shit.

And what happens to this term's SCOTUS cases that were argued while Scalia was alive but aren't yet decided? Well, that's largely up to the Court. In cases where Scalia's vote wouldn't matter -- i.e., cases where there's at least 5 votes for a given outcome without Scalia -- the Court will probably just release the decisions with 8 votes.

In cases that are 4-4, where Scalia's vote would be outcome determinative, the court can issue the decision as a 4-4 tie, which operates to affirm the lower court decision under consideration, or hold over those cases for reargument following appointment and confirmation of a new justice. There's historical precedent for both courses.

In any event, the importance of the Supreme Court in presidential elections is usually limited to some perfunctory references on candidates' websites and during debates. Not this time.

[wildernesse]

I was under some kind of delusion that the Republicans in the Senate would act like they are actually part of a legitimate government and at least make their mouths move in the shape of something like, we look forward to seriously considering the President's nominee. Even if that meant they were ready to vote against every last possibility.

[Stephen Maturin]

Originally Posted by wildernesse

I was under some kind of delusion that the Republicans in the Senate would act like they are actually part of a legitimate government and at least make their mouths move in the shape of something like, we look forward to seriously considering the President's nominee.

You feeling okay, wilde?

[ChuckF]

Originally Posted by Stephen Maturin

Aren't you the candy-ass who wished "good cancer" on your "political opponents" here at ? Why yes, you are indeed that candy-ass.

What a good old thrad!

[wildernesse]

I am dead weary of these kinds of politics.

[Stephen Maturin]

Originally Posted by ChuckF

What a good old thrad!

Yer damn right!

Originally Posted by livius drusus

What is with crackpots and their hardons for artificial island nations?

And the efforts of Dribbles the Wonder Chimp to argue "logic" with Clutch are destined to become a central component of Sovereign Lolbertarian Republic of Oil Rig lore.

[ChuckF]

My favorite part is where davidm mentions the cost of a taxi medallion in passing, but I think the passage of time has shown who was right and who was wrong: I mean, just look at all the Uber drivers who are fucking millionaires right now.

ETA: looooool A=A, that is precious.

AynMises, where are you these days? Why aren't you here as much? Have you graduated college?

[BrotherMan]

Originally Posted by wildernesse

I was under some kind of delusion that the Republicans in the Senate would act like they are actually part of a legitimate government and at least make their mouths move in the shape of something like, we look forward to seriously considering the President's nominee. Even if that meant they were ready to vote against every last possibility.

Why would they start now?

[wildernesse]

Originally Posted by BrotherMan

Why would they start now?

I have no good answer. I guess I thought they would stop with rendering their own branch of government inoperable. Or have some sort of actual principle besides NOPE.

I'm just completely at sea when it comes to the support for this kind of nonsense.

[Kael]

I'm kind of baffled too, especially since a decent amount of hem-hawing and old-fashioned bureaucratic obfuscation would accomplish the same thing without painting them as utterly intractable, but the electoral monster that has grown out of how they've fired up the base for decades has come to demand that very intractability. I have talked to too many right-wingers thoroughly convinced that even the bare handful of times Congressional Republicans haven't mindlessly opposed everything these past eight years adds up to conspiratorial capitulation. That's Republicans capitulating to Democrats, which I feel the need to clarify because it's Bizarro World-level bat-shit backwards, but it's the narrative that huge swaths of the Republican base eat by the shovelful these days.

[erimir]

Originally Posted by wildernesse

I was under some kind of delusion that the Republicans in the Senate would act like they are actually part of a legitimate government and at least make their mouths move in the shape of something like, we look forward to seriously considering the President's nominee. Even if that meant they were ready to vote against every last possibility.

I feel like if there isn't some way to get the GOP to reform, we're heading into decline of the Roman Republic territory.

They now view institutional sabotage as perfectly acceptable. It is, after all, technically allowed in the Constitution.

[The Man]

Scott Lemieux speculates that we could very well be facing a Constitutional crisis in the wake of Scalia’s death. Speculating about what the Founders would do is sort of pointless, since they always intended the Senate to be a check on democracy (it’s worth pointing it out wasn’t even directly elected before the Constitution was amended), but they also didn’t intend for political parties even to exist, much less to wield the massive amounts of power they currently do. This is in many ways a flaw with both a presidential system and in particular a two-party system; in particular, the latter is flawed because in a multi-party system the governing coalition would likely have to include some moderates, which would eliminate the problem we currently face of Republicans who cooperate with the opposition being primaried from the right.

Lemieux links to Ian Millhiser’s proposition that the way judges are confirmed should simply be outright changed. I think Millhiser’s argument is strong, though at the moment there is not even a remote chance of passing the Constitutional amendment that would be necessary to fix this. The amendment I proposed overturning Citizens United would have a much better chance of passing in today’s political climate. However, if we face several years of obstructionism over Supreme Court nominees, who knows how that will change things.

Lemieux has argued that the advise and consent power was an outright mistake, and I’m not sure I can disagree with that. Certainly it stopped the nomination of Robert Bork, but there are other ways that could presumably have been done.

Anyway, yeah, I agree with erimir; we’re facing an unprecedented crisis here.

In other news, Samantha Bee’s piece about Scalia’s death and the subsequent debate is lots of fun. I think I’m going to enjoy her new show almost as much as I’ve been enjoying Last Week Tonight.

Samantha Bee on Scalia et al.

For that matter, here’s John Oliver.

John Oliver on Scalia et al.

[erimir]

Originally Posted by The Man

Anyway, yeah, I agree with erimir; we’re facing an unprecedented crisis here.

As of now, without the GOP displaying much of a sign that they have any appetite for backing down (it might be that as more old white people die over the next decade or so, the GOP starts to calm down a bit), the solution is just to ensure that we defeat them.

Which is why I don't really see why anyone wouldn't put electability as pretty much the only decision point between Bernie and Hillary.

There is still time for Bernie to demonstrate that he's more electable, but experience and polls (about socialism, for example) and the fact that he hasn't yet faced attacks based on his radical past and right-wing lies about his current plans* makes me give Hillary the edge. The betting markets agree... they currently have Hillary at a 65% chance of winning as the nominee and Bernie at about 50%. It's not a huge edge, but for me it more than outweighs their policy differences.

Because getting a liberal Supreme Court Justice won't just be a win for our side, it will help limit the damage the GOP can do as they go through the final stages of syphilis.

In particular, the Supreme Court's influence on laws relating to elections will be important:

• Restricting campaign finance/undoing Citizens United. They might be reluctant to overturn such a recent decision, but they certainly can begin undermining it immediately.
• Voting rights: They can ensure that voter ID laws are struck down, or are required to be accompanied by the expansion of accessibility for those IDs and that they are free. They can require jurisdictions to more evenly distribute polling places and resources among polling places, so that poor and minority voters are not forced to travel farther and wait longer.
• Gerrymandering: The court has shown an openness in the past to restricting partisan gerrymandering. A solid liberal on the court could put it over the top. Given that Kennedy has expressed some openness to the idea as well, it's even possible that it could be a 6-3 decision. Scalia's death right now has already eliminated whatever tiny chance there was of them adopting voting population as the acceptable or even required basis for redistricting, which would've shifted the balance significantly away from minority populations (especially Hispanics).

All of these changes will help reduce the GOP's currently disproportionate power. Corporate interests will have less influence on elections. The GOP will be (nearly**) unable to control a House majority without winning the House popular vote. And we can end their voter suppression, making it more difficult for them to win.

Other issues that the SCOTUS could affect:

• Reproductive rights - another liberal will start to rein in TRAP laws, reversing some of the losses in abortion access
• Affirmative action and racial discrimination issues
• LGBT rights - non-discrimination
• 1st amendment rights
• gun control - reverse or undermine Heller
• ACA - reverse or undermine King v. Burwell
• criminal justice - side with victims of the justice system, against warrantless searches
• privacy
• environmental regulation - Scalia's death has already stopped their attempt to block climate change regulations
• worker and union rights

And on almost all of these, I don't really see why Hillary is going to sell us out. These are mostly all issues that are wins for the Democratic Party and I don't see her as being ideologically opposed to most of them. Only a few issues are ones where I see Bernie's preferences as significantly different, and even then, she can't get a justice who agrees with her on everything unless she appoints herself.

I don't understand looking at that list of issues Hillary could help us make real progress on and then shrugging and voting for a protest candidate because she's too awful to contemplate. Voting for Bernie, I can understand, but mostly only if you are unconvinced that her electability advantage is as large as I think it is or that Bernie is the one with the advantage.

*And Paul Krugman makes the argument that his current plans are not realistic in terms of how much they will cost overall and in how much the middle class will pay for them, making the prospect of GOP attacks on them even more damaging.

**Democratic voters being concentrated in urban areas makes their districting advantage partly baked in. But most of their advantage in the House is due to gerrymandering. They might win the House with a popular vote of 49%, say, but right now they can win with something more like 45-47%

[Stephen Maturin]

The SCOTUSblog guy is now suggesting that Judge Ketanji Jackson of the U.S. District Court for the District of Columbia would be a good nominee, and that makes some sense. The Senate confirmed Jackson's 2009 nomination to the U.S. Sentencing Commission unanimously, and confirmed her 2013 federal judgeship nomination on a voice vote. The Senate Republicans would look even more assholic than usual if they simply table the nomination, and it could give the Dems a potent rallying point for the upcoming election.

[The Man]

A long round-up of reading related to Scalia's death and the next nominee:

Rasmussen poll indicates that voters feel that Obama should nominate Scalia's replacement by a 51% to 43% margin, and that the Senate should not block confirmation hearings by a 53% to 35% margin. Since Rasmussen frequently has a substantial rightward lean, the number of people opposed to the Republicans' grandstanding may very well be even larger than that.

Matthew Rosza at Daily Dot examines one of Scalia's positive legacies, namely on Internet freedom. It is unquestionable that his views on this topic evolved with time, and to his credit he seems to have been willing to entertain new arguments about the topic, recognising in this particular case that a document written hundreds of years ago may not be the final word on modern technology. (It's unfortunate he didn't do this with other aspects of the Constitution, but I digress).

David Axelrod reports that Scalia recommended Kagan for a Supreme Court appointment. (Sotomayor was appointed the first time, but Kagan was the second time around, obviously). They also apparently had a fairly close friendship that only deepened after she became a justice.

Fivethirtyeight examines how the Supreme Court vacancy is likely to affect the general election. Julia Azari speculates that outside of hardcore partisans, the vacancy probably won't be voters' primary concern, since voters who pay attention to the Court generally already have opinions about the ways it should rule, but it will likely have a major impact on elite discussion and media coverage of the election, and should the vacancy remain open at the time of the election, it will likely be used to further buttress the claim of a "mandate" by whomever wins.

Garry Wills correctly points out that it was never the intention of the Framers for voters to have a choice about Supreme Court justices. One can debate whether it was the right decision, but the Republicans claiming that the American people should have a say in the selection of the next Justice are severely misreading the Constitution. (Not to mention that they already did get a say; it was called the 2012 election).

Shortlist of potential nominees from Slate's Dahlia Lithwick. In another article, Lithwick covers the principles Obama has already articulated by which he selects his judicial nominees. Polling seems to indicate that voters agree at least with Obama's standard of "empathy".

The always indispensable Norm Ornstein on how the modern crisis could be even worse than it appears. (To be fair, this has been a constant theme of Ornstein's recent writing; his two most recent works are entitled It's Even Worse Than It Looks and the updated version, It's Even Worse Than It Was).

Richard Schragger argues that the doctrine of originalism demands exactly the opposite conclusion from what Ted Cruz is claiming (i.e., that the next President should nominate Scalia's replacement).

David Fontana and Ian Bessen argue that a moderate justice would be no more likely to get confirmed than a liberal would (not least because the media is likely to focus more on the process of the nomination than on the substance), and that Obama should nominate a liberal. They also argue that Obama has a duty to select a nominee who reflects his own political values, since that's exactly what he was elected to do. Furthermore, since the Republican Party is currently at its most unpopular point in 25 years, Fontana and Bessen argue that voters are more likely to respond to the actions of legislators than to the specific stances of a nominee, particularly in swing states or re-election campaigns for first-term legislators. Moreover, the strong background of many of the potential nominees will make it difficult for anyone to argue that they aren't qualified for the position, which will indicate that they're refusing even to consider a nominee based purely on politics. This is not likely to have good optics in a general election.

William Saletan argues that Scalia's decision in Heller will be the most consequential issue in the race for the Republican nomination. Ted Cruz has highlighted this, which, if Saletan is correct, would indicate that he understands the Republican base better than Rubio does. Saletan also speculates on nine ways Obama could decide to play the next nomination.

Jordan Weissman refutes the "lame duck" meme.

Mugambi Jouet examines Scalia's legacy on criminal justice and finds it deeply negative.

Brian Rosenwald provides more evidence that McConnell's obstructionism is historically unprecedented.

Stephen Collinson argues that the next nominee is going to have a tough time of it.

Kevin Kruse refutes the idea that the Bork nomination is in any way a predecessor to the modern Republicans' grandstanding.

Tiger Beat on the Potomac suggests that if Republicans go through with their obstructionism, they will live to regret it, as many of them seem to have done with the 1968 filibuster of Abe Fortas.

Rob Hunter of Jacobin argues that the focus on the Court is beside the point, that the Court has historically been a bulwark of reactionary politics, and that the focus should instead be on rethinking its increasingly powerful role in modern politics.

[ImGod]

On top of all that useful information. Obama regrets joining in a 2006 filibuster of Justice Alito, because modern technology makes it easy to point out when you say one thing and do another.

http://www.usatoday.com/story/news/p...says/80514152/

[Kyuss Apollo]

Originally Posted by The Man

Garry Wills correctly points out that it was never the intention of the Framers for voters to have a choice about Supreme Court justices. One can debate whether it was the right decision, but the Republicans claiming that the American people should have a say in the selection of the next Justice are severely misreading the Constitution. (Not to mention that they already did get a say; it was called the 2012 election).

Indeed, the Judiciary is the branch furthest removed and insulated from "the people," a deliberate calculation by the Founding Fathers who figured the unwashed masses should only be entrusted with choosing members of the House of Representatives. Before the Seventeenth Amendment senators were not elected but were selected by the state legislatures (and in some state legislatures the upper house were not elected bodies at the time of the original Constitution either). The Electoral College, not the people, decide who the next President will be. Well, except in the Elections of 1800, 1824, 1876, and 2000.

Silly Republicans.

But then, when have they ever let facts get in the way of a good tea party?

[davidm]

A drunken Obama names his Supreme Court pick.

Obama Taps Scalia’s Maggot-Infested Corpse to Replace Scalia on Supreme Court
President Makes Yet Another Empty and Futile Attempt to Suck Up to Rich White People Who Hate Him and His Ilk

FREETHOUGHT-FORUM (Internet News Service) — President Obama, reaching out yet again to Congressional Republicans who for seven solid years have treated him like a plantation nigger, on Friday nominated the maggot-infested corpse of Antonin Scalia to replace the late Antonin Scalia on the Supreme Court.

“With this overture, I once again demonstrate, as I first said in my 2008 campaign, that we are not red states or blue states,” Obama said in a televised speech from the Oval Office. “We are the United States.”

Senate Republicans immediately vowed to block the appointment.

“Of course we would love to see the maggot-infested corpse of Antonin Scalia replace Antonin Scalia on the Supreme Court,” said Senate Majority Leader Mitch McConnell. “But since Obama made this nomination, naturally we must oppose it.”

McConnell added: “As a black man, Obama under the Constitution can only serve three-fifths of a term in office. Hence his second term has already expired, and he has no constitutional authority to nominate a Supreme Court justice.”

Some analysts were skeptical that Scalia’s maggot-infested corpse would be an improvement over Scalia.

“It’s all well and good to be a maggot-infested corpse,” said one wealthy Republican insider who spoke on condition of anonymity because he was drunk and wiping his ass with hundred-dollar bills. “But Scalia, before he died, wasn’t just a maggot-infested corpse. He was a maggot. You just can’t beat the real deal.”

[Stephen Maturin]

It's only fair, seeing as how Obama probably had Scalia murdered and all.

Meet the Scalia Death Truthers: Was He Murdered by Obama or Aliens? - The Daily Beast

Naturally, America's most successful troll can't help but get in on the action:

“It’s a horrible topic, but they say they found a pillow on his face, which is a pretty unusual place to find a pillow. I can’t give you an answer,” Trump said stoking the conspiracy flames.

[The Man]

I’m surprised they’ve forgotten the murderer of Vince Foster and BENGHAZI!!!!11 culprit in their conspiracy theories. I’ve hardly seen anyone accuse Hillary of murdering Scalia. And what about poor Sanders? He never gets accused of any dirty dealings. Surely you’d think a radical socialist communazi Jew would be accused of all kinds of unspeakable acts.

Anyway, unsurprisingly, the Republicans have reiterated that they will not confirm anyone Obama nominates regardless of how moderate the nominee. The Rude Pundit, as usual, has the best take on this kind of thing. A whisper campaign about a possible nominee has already been started, namely Brian Sandoval. Sandoval is a rare example of that dying breed, a moderate Republican (although, should he accept this nomination, he would almost certainly be drummed out of the party forever). A well-liked governor of Nevada and a former federal district judge who was appointed by George W. Bush and unanimously confirmed in the Senate, Sandoval expanded Medicaid coverage in his state and:

Originally Posted by Pierce

is moderately pro-choice, considers marriage equality to be a done deal, signed the largest tax increase in Nevada's history, largely supports the president's position on immigration reform, and even has fought against his state legislature's attempts to enact tort reform. He also has sought to pry Nevada's economy loose from its dependence on the gaming industry.

In other words, unlike Kasich, he actually is a moderate. Naturally, he's completely unacceptable to the Republican Party.

"There's been this dramatic betrayal," says the staunchly anti-tax Republican Assemblyman Ira Hansen, a Ted Cruz supporter who has become a public face of conservative opposition to Sandoval. "Sandoval went totally moderate liberal on us. If there was a referendum tomorrow, you'd find a dramatically different result among the Republican party base."

He’s also, as you might have guessed, Hispanic, meaning that should the Republicans proceed in this obstruction, they will further decrease their reputation among the nation’s fastest growing minority group. Wonkette has more.

What’s particularly ingenious about this nomination (and what I expect Obama is doing here) is that if the Republicans continue to dismiss Sandoval out of hand, Obama can then fairly say, “Ok, I tried to play ball with you guys, and you wouldn’t cooperate, so fuck you,” and nominate the furthest left judge he can find out there who is sufficiently qualified for the position. Preferably she’ll be a black woman as well so the Republicans can alienate further voting blocs.

Speaking of Obama, he made a guest post at SCOTUSblog about selecting a replacement for Scalia. He mostly re-articulates the principles Lithwick already acknowledged in her profile of his two previous justice selections, but it’s nice to have the principles straight from the horse’s mouth.

I will be very, very surprised if we see this vacancy filled before January at the earliest, but at the bare minimum if we’re smart about this we can make this hurt the Republicans as much as possible. It’s unfortunate that the only way to solve this crisis is to kick out the obstructionists. It seems to be a rather insurmountable flaw with our precious Constitution.

[The Man]

Obama’s shortlist of potential nominees has been released. ThinkProgress, Vox, and, of course, SCOTUSblog are among the sites with write-ups of what we know about them (although for some reason, SCOTUSblog only lists five instead of the six that ThinkProgress and Vox list).

I may have more on this later.

[Janet]

And we have a nominee. He went with Merrick Garland. He's supposed to be hard for the Senate to refuse, but I doubt the petulance of the Senate has any limits.

[wildernesse]

Yes, I think that when Republicans say they want a consensus choice, they are using their own definition of consensus. The one that doesn't involve any input from people who disagree with them.

I got a ridiculous reply from Sen. Flake about why he is not going to do his job.

One would have to go back more than a century to find a scenario where a president's nominee for the Supreme Court was confirmed by the opposition party in the United States Senate when the vacancy occurred during an election year. I am not about to break new ground in the Senate, particularly when any nominee could so drastically shift the balance of the court.

Bold in the original, which only served to piss me off more.

I should have just sent off what I wrote when I read this initially, but I thought I would let it rest. Apparently that works for some people, but I just come back, get mad all over again, and write more angry things.