Antonin Scalia (March 11, 1936 - February 13, 2016)
February 13, 2016 2:08 PM   Subscribe

 
.*
posted by duffell at 2:09 PM on February 13, 2016 [28 favorites]


 
posted by grouse at 2:09 PM on February 13, 2016 [48 favorites]


So long!
posted by Small Dollar at 2:10 PM on February 13, 2016 [9 favorites]


.
posted by Radiophonic Oddity at 2:11 PM on February 13, 2016


I think we're going to have only 8 justices for a rather long time.
posted by dilaudid at 2:11 PM on February 13, 2016 [44 favorites]


Seen on twitter: Kindness to those who loved him and help to the rest of us from being too inappropriate in their time of loss, amen.

He was a very principled thinker and responsible for some of the best 4th Amendment jurisprudence I studied in law school. But I sorely disagreed with much of the rest of his thinking.

But as many many courtwatchers knew--he'd die (figuratively) on the bench.
posted by crush-onastick at 2:11 PM on February 13, 2016 [66 favorites]


Wikipedia.
posted by Brian B. at 2:11 PM on February 13, 2016 [1 favorite]


If that's a "ranch," I'm a Supreme Court Justice. Adios, Antonin!
posted by Carol Anne at 2:12 PM on February 13, 2016 [7 favorites]


Great on Fourth Amendment issues, terrible on just about every other contentious issue.

.
posted by edeezy at 2:12 PM on February 13, 2016 [5 favorites]


.
posted by shakespeherian at 2:13 PM on February 13, 2016


Let me be the inappropriate one, then: goodbye and good riddance.
posted by Existential Dread at 2:13 PM on February 13, 2016 [165 favorites]


Crap, beat me by a few minutes.

Just in time for the first Valentine's Day for all the newly married LGBT folks! Huzzah!
posted by nevercalm at 2:15 PM on February 13, 2016 [20 favorites]


I'm going to be off in a corner muttering nil nisi bonum for a while.
posted by benito.strauss at 2:15 PM on February 13, 2016 [18 favorites]


I thought if anyone had figured out the secret of hanging on out of spite = eternal life it would be Scalia but I guess not.

Man I better check out of this thread because of the if you can't talk well about the dead don't talk at all rule...
posted by vuron at 2:15 PM on February 13, 2016 [3 favorites]


This news made my day. I rarely speak ill of the dead, but in this case, I'll make an exception. This man's death came far later than it should have, and we will be better for it. 5-4 decisions bringing us back into the dark ages may actually shift to progress.
posted by Chuffy at 2:16 PM on February 13, 2016 [20 favorites]


Scalia...Obama...Whoa.
posted by googly at 2:16 PM on February 13, 2016 [1 favorite]


Is there anything that could prevent Congress from just running out the clock on confirmation of an Obama nominee?
posted by jpdoane at 2:16 PM on February 13, 2016 [6 favorites]


So, Obama gets another shot?
posted by valkane at 2:16 PM on February 13, 2016


you can call it natural causes if you like but i personally think my 5,000 year old looted jordanian terracotta pot full of blood might have helped
posted by poffin boffin at 2:17 PM on February 13, 2016 [174 favorites]


Always expected he would die of apoplexy, so it seems odd that he passed peacefully in his sleep.
posted by ardgedee at 2:17 PM on February 13, 2016 [22 favorites]


If 24 years or jurisprudence is anything to go by, I hope they have Clarence Thomas on some kind of suicide watch.
posted by Kid Charlemagne at 2:17 PM on February 13, 2016 [49 favorites]


In a few months we'll be calling January the "good old days" when sanity & reason prevailed on the campaign trail.
posted by duffell at 2:17 PM on February 13, 2016 [43 favorites]


I don't wish to speak ill of the dead
posted by rum-soaked space hobo at 2:17 PM on February 13, 2016 [19 favorites]


Wow. Wow.

I'll put a ., because I know even Justice Ginsburg was a friend of his, but elections matter folks.
posted by roomthreeseventeen at 2:17 PM on February 13, 2016 [31 favorites]


I have never killed a man, but I have read many obituaries with great pleasure. - Clarence Darrow
posted by Evilspork at 2:17 PM on February 13, 2016 [215 favorites]


My thoughts to his family, who no doubt loved him very much and are hurting.
posted by obfuscation at 2:17 PM on February 13, 2016 [32 favorites]


Is there anything that could prevent Congress from just running out the clock on confirmation of an Obama nominee?

I'd really like to see this question addressed, before the thread devolves into a massive schadenboner. Now if you'll excuse me, I've got to call a doctor, myself.
posted by jpolchlopek at 2:17 PM on February 13, 2016 [21 favorites]


As if this election wasn't important enough.
posted by longdaysjourney at 2:17 PM on February 13, 2016 [14 favorites]


Too much jiggery-pokery.
posted by dhens at 2:18 PM on February 13, 2016 [13 favorites]


*
posted by lalochezia at 2:18 PM on February 13, 2016


.

I hated his politics, and his fiery rhetoric in favor of "originalism" was disingenuous at best. Nevertheless,

.

all the same.
posted by enjoymoreradio at 2:18 PM on February 13, 2016 [6 favorites]


my 92 year old dad: "I can't say I'll miss him."
I agree.
posted by Floydd at 2:18 PM on February 13, 2016 [12 favorites]


Texas Gov. Greg Abbott released a statement Saturday afternoon, calling Scalia a man of God, a patriot and an "unwavering defender of the written Constitution."

"He was the solid rock who turned away so many attempts to depart from and distort the Constitution," Abbott said. "We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the Rule of Law.
Y'know, this nil nisi bonum thing only works when people don't immediately try to turn the mortibus into a convenient political talking point.
posted by benito.strauss at 2:18 PM on February 13, 2016 [38 favorites]


I can't see how Obama manages to get a justice confirmed on his watch but this has basically confirmed that no matter what the November election is 100% about the SCOTUS.
posted by vuron at 2:18 PM on February 13, 2016 [25 favorites]


Condolences to his family. HUZZAH to the rest of the USA.
posted by pjsky at 2:18 PM on February 13, 2016 [11 favorites]




Well, the US Presidential election season just got more deranged. Congress will definitely want to stall on letting Obama put in a new judge.
posted by Brandon Blatcher at 2:19 PM on February 13, 2016 [5 favorites]


I find I can't make myself feel bad about this.
posted by Mooski at 2:19 PM on February 13, 2016 [6 favorites]


As if this election wasn't important enough.

Quite right, though I hope that a nomination can get through before Jan. 20, 2017.
posted by dhens at 2:19 PM on February 13, 2016 [5 favorites]


"According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body."

I'm not convinced.
posted by valkane at 2:20 PM on February 13, 2016 [4 favorites]


Is there anything that could prevent Congress from just running out the clock on confirmation of an Obama nominee?

Basically, no. The Senate can take as long as it wants to do anything it wants, and nobody can force it to work faster. Whether Obama can get a nominee through the Senate before his successor comes into office is really up the in the air, especially with this crazy-pants election going on.
posted by dis_integration at 2:20 PM on February 13, 2016 [7 favorites]


Obama could just drop everything and focus solely on appointing a SCOTUS. The Teabbagger Congress isn't going to do anything else anyway.
posted by Chuffy at 2:20 PM on February 13, 2016 [3 favorites]


.
posted by Aravis76 at 2:20 PM on February 13, 2016


crushonastick: He was a very principled thinker and responsible for some of the best 4th Amendment jurisprudence I studied in law school. But I sorely disagreed with much of the rest of his thinking.

I disagree. The last few years, when he became increasingly radicalized, his decisions were far from principled. He would often bend his "originalism" into increasingly torturous contortions to get the result he personally wanted.

The man did put out some great opinions, but I think he lost it around the turn of the century.

That being said, I hope his family is able to get through this tough time. I don't wish death upon anyone, no matter how much I disagree with or dislike them.
posted by reenum at 2:20 PM on February 13, 2016 [45 favorites]


Obama can make a recess appointment if they try to run out the clock, according to Wikipedia: "Thus, when the Senate is in recess, the President may make a temporary appointment to any office requiring Senate approval, including filling vacancies on the Supreme Court, without the Senate's advice and consent. Such a recess appointee to the Supreme Court holds office only until the end of the next Senate session (at most, less than two years)."
posted by thefoxgod at 2:20 PM on February 13, 2016 [34 favorites]


I know it's terribly crass but I did some fist pumping when I read the news.

The shit-show is about to get shittier.
posted by photoslob at 2:21 PM on February 13, 2016 [2 favorites]


I don't like to celebrate any one's death, so I will instead celebrate the fact that Justice Antonin Scalia's work on this earth is done.
posted by orange swan at 2:21 PM on February 13, 2016 [112 favorites]


Sympathy to his family and friends, including the notorious RGB. Wow to the rest.
posted by theBigRedKittyPurrs at 2:22 PM on February 13, 2016 [6 favorites]


I am not glad he is dead though I wish he had retired years ago.

.

for him and his family.
posted by Justinian at 2:22 PM on February 13, 2016 [8 favorites]


Yeah. But a recess appointment is for shit if Trumpuzubio gets the White House.
posted by dis_integration at 2:22 PM on February 13, 2016


Tom from SCOTUSblog on CNN right now, for those near a TV.
posted by roomthreeseventeen at 2:22 PM on February 13, 2016 [1 favorite]



I can't see how Obama manages to get a justice confirmed on his watch but this has basically confirmed that no matter what the November election is 100% about the SCOTUS.


Well it looks like if they failed to do so he could put anyone he wants up there, although if a Republican became President I suppose it would be a short-lived recess appointment.

On the other hand, if a Democrat became President they could in theory keep that nominee on the court for 2 years.

So there's a scenario here where for 2 years Obama could put literally anyone on the Court, as I read it.
posted by thefoxgod at 2:23 PM on February 13, 2016 [4 favorites]


Tonight I'll be drinking to the fact that he no longer has his job.
posted by eyeballkid at 2:23 PM on February 13, 2016 [6 favorites]


And if there's an argument about lifetime appointments to the Court, it is that the inevitable result is politicizing death. I understand the impulse to celebrate, and simultaneously find such celebrations distasteful.
posted by enjoymoreradio at 2:23 PM on February 13, 2016 [22 favorites]


I guess when I say "principled" I'm thinking of the "battleground god" exercises, where you are thrown a bunch of ethical questions, given only a few quick moments to respond, and then scored on how internally consistent you are.

But I'd agree, he has gotten less so in recent memory.
posted by crush-onastick at 2:23 PM on February 13, 2016 [1 favorite]


so, what does this mean for the CCP case?
posted by angrycat at 2:23 PM on February 13, 2016 [2 favorites]


Wow, what an unexpected good thing for America.
posted by great_radio at 2:24 PM on February 13, 2016 [5 favorites]


[A few deleted. I appreciate that so far people are mostly keeping it on the high-ish road here, let's continue to keep it away from literal "rot in hell"/ "I piss on his grave" stuff. Thanks.]
posted by LobsterMitten at 2:24 PM on February 13, 2016 [52 favorites]


If that's a "ranch," I'm a Supreme Court Justice.

As long as it has brush that needs clearing, it's a ranch by GOP standards.
posted by thelonius at 2:24 PM on February 13, 2016 [23 favorites]


and i'll stand up and scream if the mourning remain quiet
you can deck out a lie in a suit but i won't buy it
i won't join in the procession that's speaking their peace
using five-dollar words while praising his integrity
and just 'cause he's gone it doesn't change the fact
he was a bastard in life thus a bastard in death


i'm glad he's not on the bench anymore - and as he was determined to stay until he died, this was the only way to get that outcome. i won't feel guilty for being relieved.
posted by nadawi at 2:24 PM on February 13, 2016 [23 favorites]




If Congress stalls too long, Clinton or Sanders could appoint Obama to the Supreme Court. At the moment, I'm very much enjoying the mental vision of Congress losing its shit over THAT turn of events.
posted by orange swan at 2:25 PM on February 13, 2016 [289 favorites]



posted by TedW at 2:25 PM on February 13, 2016 [12 favorites]


as long as this issue remains in the news, democrats can use it to drive turnout through the roof in november. If the republicans had half a brain, they would cut their losses and confirm whoever the hell Obama wants as quickly as possible so everyone can go back to being apathetic. but todays republicans have negative brains, so anything is possible.
posted by Glibpaxman at 2:25 PM on February 13, 2016 [75 favorites]


I just want to say good luck. We're all counting on you.
posted by RakDaddy at 2:26 PM on February 13, 2016 [33 favorites]


my mom always said if you can't say anything nice, don't say anything at all, so let me just say this:
 
 
 
posted by entropicamericana at 2:26 PM on February 13, 2016 [22 favorites]


Constitutional crisis time, no way the teabaggers allow Obama to have another appointment that flips the balance. They'll filibuster till January.
posted by T.D. Strange at 2:26 PM on February 13, 2016 [3 favorites]


If you can't say something nice
posted by TedW at 2:26 PM on February 13, 2016 [1 favorite]


I'll say that I'm glad for him that he seems to have died rather peacefully, because no one deserves a long agonizing death in my opinion.

There, that's a nice thing to say.
posted by zutalors! at 2:26 PM on February 13, 2016 [73 favorites]


Fingers crossed for a quick replacement.
posted by Artw at 2:26 PM on February 13, 2016 [3 favorites]


I'll just say that I am so pleased he lived long enough to see gay marriage become a reality.
posted by kelborel at 2:27 PM on February 13, 2016 [254 favorites]


So there's a scenario here where for 2 years Obama could put literally anyone on the Court, as I read it.

Could Obama put Bernie Sanders on the Supreme Court? Gives Bernie a shot at major influence; clears a path for Hillary; drives the right into a state of apoplexy.
posted by Wordshore at 2:27 PM on February 13, 2016 [19 favorites]


HOLY SHIT
posted by triggerfinger at 2:27 PM on February 13, 2016 [1 favorite]


1986?

Do you mean 1936? He was 79 years old.
posted by briank at 2:27 PM on February 13, 2016 [1 favorite]


He was only 29!
posted by blakewest at 2:27 PM on February 13, 2016 [16 favorites]


Really whether this is a "good" thing for liberals comes down to (a) what the Senate does now, and (b) who becomes President. If the Senate does run out the clock and a Republican becomes President, they'll possibly have a Republican Senate as well and can nominate someone worse and younger.

Although I'm also not sure of the politics angle of making them run out the clock, might not go over well with independents.

They'll filibuster till January.

I don't think the Senate will stay in session until then, will it? The moment it goes into recess he will appoint someone if they haven't already. It's just that it won't matter much if the incoming President and Senate are Republican.
posted by thefoxgod at 2:28 PM on February 13, 2016 [4 favorites]


I cannot help it. This news was the best thing I have heard in an otherwise totally shitty week.

He was a fascist -- a real fascist -- with huge power he wielded to make people miserable. I consider his death no more a cause for mourning than the death of a tinhorn dictator.
posted by spitbull at 2:28 PM on February 13, 2016 [44 favorites]


"Never wished anyone dead, but I’ve read many obituaries with great relish." -- Mark Twain
posted by rhizome at 2:28 PM on February 13, 2016 [31 favorites]


Can Obama appoints himself at the end of his term?
posted by McSly at 2:28 PM on February 13, 2016 [3 favorites]


I'll just say that I am so pleased he lived long enough to see gay marriage become a reality.

god i just threw my head back and brayed like an ecstatic donkey full of vindictive gay glee
posted by poffin boffin at 2:28 PM on February 13, 2016 [78 favorites]


Does anyone know if there have been appointments begun later in a Presidential term than this? (I'm knowledgeable enough about U.S. politics to be concerned, but not enough to have any idea about precedent.)
posted by aedison at 2:28 PM on February 13, 2016 [1 favorite]


(I mean, what would be the downside for Obama of doing a recess appointment? So I'm assuming he would do one as soon as he could, which means the Senate's strategy would depend on whether they think a Republican or Democrat will be the next President)
posted by thefoxgod at 2:29 PM on February 13, 2016


From Jake Flores on Twitter:

"i'm starting to think that this is the last season of America and the writers are just going nuts"
posted by Wordshore at 2:29 PM on February 13, 2016 [311 favorites]


briank, he was confirmed in 1986.
posted by roomthreeseventeen at 2:29 PM on February 13, 2016 [1 favorite]


Also, as for his family? He did his best to keep gay and lesbian couples from being with each other on their deathbeds. So no, I don't care about his family.
posted by spitbull at 2:29 PM on February 13, 2016 [40 favorites]


I have nothing to say about Scalia, I'm just here for the discussion of the implications for Obama and the election. Just when I didn't think it could get more deranged...
posted by nubs at 2:30 PM on February 13, 2016 [3 favorites]


Hah, yes. The date in the title should be 1936, not 1986.
posted by Ouverture at 2:30 PM on February 13, 2016 [2 favorites]


I mean, what would be the downside for Obama of doing a recess appointment?

I don't think you can recess appoint a Justice. It's a separate branch.
posted by ChurchHatesTucker at 2:30 PM on February 13, 2016


I'm very excited to see how Nothing Left To Lose Obama plays this!
posted by prize bull octorok at 2:30 PM on February 13, 2016 [30 favorites]


I'm wondering about the redistricting case for North Carolina; it just got sent to the Supreme Court, and absentee ballots for the primaries are apparently in. I think one of the districts in question is partially in Durham County.

I guess the news will talk about it in a day or two.

Sorry for the loss of his family and friends, and those who depended on him. He must have been loved by a fair number of people to have made it to the Supreme Court, and he must have done a lot of good work.

If you have conservative friends or family members or acquaintances who will be worried because of this development, please try to reassure them that all people care about many of the same basic human values, even if they don't emphasize them: love, loyalty, family, peace, health, and having something to work toward.
posted by amtho at 2:30 PM on February 13, 2016 [6 favorites]


I mean, it's a fuckin' year. It only seems like it's close to the end of the term because our elections are insane.
posted by ckape at 2:30 PM on February 13, 2016 [34 favorites]


Someone had "Scalia dies on the shitter" in my predictions league, so keep your fingers crossed!
posted by everybody had matching towels at 2:31 PM on February 13, 2016 [5 favorites]


[Fixed date in title, thanks.]
posted by restless_nomad at 2:31 PM on February 13, 2016 [2 favorites]


I envy the people who didn't have to wait to see this news confirmed.
posted by rhizome at 2:31 PM on February 13, 2016 [1 favorite]


.


Replace him with Lawrence Lessig.
posted by JohnFromGR at 2:31 PM on February 13, 2016 [42 favorites]


.
posted by AugustWest at 2:31 PM on February 13, 2016


He has a whole year. I don't think they can stall that long, especially if he picks the right candidate.
posted by xammerboy at 2:32 PM on February 13, 2016 [3 favorites]


One of the most powerful things to keep in mind, when someone dies, is that if they get buried, lots of very very small organisms will eventually start ripping apart their corpse, and using it to make them stronger! Let's take a moment to remember those tiny organisms, and all the good they do for the renewal of the world!
posted by Greg Nog at 2:32 PM on February 13, 2016 [86 favorites]


Donald for Supreme Trump!
posted by blue_beetle at 2:33 PM on February 13, 2016


I didn't agree with him about much of anything, but there were times I enjoyed reading his opinions.

.
posted by box at 2:33 PM on February 13, 2016 [4 favorites]


Wow this might save public sector unions for the time being. Friedrichs was looking like a 5-4 loss but now will probably just be a 4-4 tie.
posted by smackfu at 2:33 PM on February 13, 2016 [10 favorites]


"That asshole Mark Twain gets credit for my best line." -Clarence Darrow
posted by duffell at 2:33 PM on February 13, 2016 [129 favorites]


another Sotomayor, please!
posted by persona au gratin at 2:33 PM on February 13, 2016 [5 favorites]


[Fixed date in title, thanks.]

Scalia was born on March 11, 1936. The previous title of September 26, 1986 was a reference to the day he took his seat on the Supreme Court.
posted by lullaby at 2:33 PM on February 13, 2016 [13 favorites]


As if this election wasn't important enough.

every f***ing American election is way too important* -- the means to deciding who gets to sit in the single most powerful seat on the planet.

As for Scalia, it's moments like these that make me wish God was real and yrrr basic Protestant fiery sort. Because Scalia is due some judgment.

* until the empire fails.
posted by philip-random at 2:34 PM on February 13, 2016 [6 favorites]


This is slightly reminding me of the response to Margaret Thatcher's death, which I was also uncomfortable with. I feel like, for most public figures, the public persona and ideology are a different thing from the essentially unknown and unknowable private person, with their private relationships and history. I'm glad Mrs Thatcher is not Prime Minister and I'll be glad if Thatcherism ever goes away again but I'm not glad that she, that particular woman / mother / friend / wife, is dead. I admit the principle doesn't hold all the way down - I find it hard to seriously feel bad that Hitler died - but I think it at least holds for people who haven't literally killed anyone themselves.
posted by Aravis76 at 2:34 PM on February 13, 2016 [14 favorites]


Yeah. But a recess appointment is for shit if Trumpuzubio gets the White House.

I remember Trumpuzubio. Worst. Phil Collins. Song. Ever.
posted by jonp72 at 2:34 PM on February 13, 2016 [72 favorites]


I don't think you can recess appoint a Justice. It's a separate branch.

Nah, judges get recess appointed all the time. According to wikipedia, "Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795."
posted by dis_integration at 2:34 PM on February 13, 2016 [3 favorites]


briank, he was confirmed in 1986.

Indeed. Wow, kind of astonishing to realize he had been on the court for almost 30 years already. Doesn't seem that long ago. Thank goodness that's over.
posted by briank at 2:34 PM on February 13, 2016 [1 favorite]


Long Live Ruth Bader Ginsburg!!
posted by great_radio at 2:35 PM on February 13, 2016 [52 favorites]


To die alone, under these circumstances. Says a lot. You don't want to be this kind of person.
posted by valkane at 2:35 PM on February 13, 2016 [2 favorites]


another Sotomayor, please!

or one that is similar, but not identical. a Sortofmayor.
posted by hippybear at 2:35 PM on February 13, 2016 [181 favorites]


Incidentally, the Senate could simply refuse to adjourn for the rest of the year to prevent a recess appointment.
posted by dis_integration at 2:35 PM on February 13, 2016 [4 favorites]


It's not Kissinger, so I'll cellar the champagne a bit longer yet.
posted by Capt. Renault at 2:35 PM on February 13, 2016 [16 favorites]


I am reminded of the great scene in The Outlaw Josey Wales where Clint Eastwood's Josey spits a wad of tobacco on the forehead of the bounty hunter he has just killed and the sidekick kid says "Shouldn't we bury him, Josey?"

To which Wales reply: "Why, buzzard's gotta eat, same as a worm."
posted by spitbull at 2:35 PM on February 13, 2016 [4 favorites]


The wheels of justice grind very slowly, but sometimes they get a boost.
posted by lineofsight at 2:35 PM on February 13, 2016 [1 favorite]


Any chance we could clone Ginsberg really fast? Although Lessig would be hella funny
posted by vuron at 2:35 PM on February 13, 2016 [2 favorites]


NINE GINSBURGS
posted by Small Dollar at 2:36 PM on February 13, 2016 [72 favorites]


I think we're going to have only 8 justices for a rather long time.

Not a chance.

Obama has a full year of office left; appointing a Justice is, literally, his job. He's supposed to do this; the Senate is supposed to vote on it. And there are enough established Republicans left (McCain, for example) who will delay it until after the primary but then tell Meet the Press that this is about "the integrity of the process" and move it forward.

He will appoint a moderate, consensus pick- someone he'll praise after "consulting with friends from both sides of the aisle" and then a bunch of Senators up for re-election will throw a hissy fit.

Then the casual understanding will pass that, if the Senate actually delays a nominee for an entire year, and stalls until Hillary Clinton becomes president, she will just nominate Obama himself.
posted by XQUZYPHYR at 2:36 PM on February 13, 2016 [125 favorites]


I don't think you can recess appoint a Justice. It's a separate branch.

Recess appointments for judges happen all the time. Here's a jstor article, and I found lots of other stuff Googling.

Article 2 Section 2 seems pretty clear: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
posted by thefoxgod at 2:36 PM on February 13, 2016 [7 favorites]


Also, I fucking DANCED when Margaret Thatcher died, dude. But then I lived in England during the early 1980s when her policies destroyed the lives of thousands of people.
posted by spitbull at 2:36 PM on February 13, 2016 [33 favorites]


BRB, trying to corner a supreme court scholar who obsesses about this stuff for their read on the situation.
posted by iamabot at 2:36 PM on February 13, 2016 [2 favorites]


Lessig would be a Jimmy Carter. We need better than that. Not that Jimmy was bad, but, c'mon.
posted by valkane at 2:37 PM on February 13, 2016


Maybe he would do better being sent to a less advanced and slower funeral home.
posted by spitbull at 2:38 PM on February 13, 2016 [16 favorites]


I'll just join in by saying nothing now.
posted by rokusan at 2:38 PM on February 13, 2016


If R's do in fact block his appointment(s) -- it may take a couple -- that is red meat in an election campaign.

.
posted by rhizome at 2:38 PM on February 13, 2016 [6 favorites]


Yeah, the Senate is less crazy than the House. He'll get someone through. It won't be Glenn Greenwald. But it'll be someone good, like Kagen or Sotomayor.
posted by persona au gratin at 2:38 PM on February 13, 2016 [5 favorites]


I remember Trumpuzubio. Worst. Phil Collins. Song. Ever.

What are you talking about? It was a YUUUUUUUUUGE hit!
posted by nubs at 2:39 PM on February 13, 2016 [10 favorites]


Cruz already pushing for the next president to name the replacement. They all will, obviously, but he won the race to be first.
posted by Artw at 2:39 PM on February 13, 2016


There are a lot of Republican senators up for re-election this year, and that will absolutely influence how they handle this. I do not foresee them being completely obstructionist because of this.
posted by LooseFilter at 2:39 PM on February 13, 2016 [5 favorites]


Recess appointments for judges happen all the time.

Pleased to stand corrected.
posted by ChurchHatesTucker at 2:39 PM on February 13, 2016 [1 favorite]


I think enough GOP Senators will not want to set the precedent of blocking any nominee Obama puts forward.
posted by humanfont at 2:39 PM on February 13, 2016


I cannot imagine how much scotusblogs page hits and ad revenue are going to go up after this.
posted by vuron at 2:39 PM on February 13, 2016 [1 favorite]


God, I wonder what this means for the Clean Power Plan, which was just suspended last week by SCOTUS in a 5-4 vote.
posted by great_radio at 2:39 PM on February 13, 2016 [8 favorites]


I don't like to celebrate any one's death, so I will instead celebrate the fact that Justice Antonin Scalia's work on this earth is done.

"The earth just had a terrible day in court"
posted by homunculus at 2:40 PM on February 13, 2016 [2 favorites]


There's gonna be a lot of people in DC--from both sides--getting blind drunk tonight.
posted by zombieflanders at 2:40 PM on February 13, 2016 [2 favorites]


Glenn Greenwald? Wow! Never thought of that! Thanks for the wet dream!
posted by valkane at 2:40 PM on February 13, 2016 [7 favorites]


.

But also yay, possibly someone with a better mindset for this century.
posted by kalessin at 2:41 PM on February 13, 2016


Obama resigns, Biden nominates him.
posted by schoolgirl report at 2:41 PM on February 13, 2016 [60 favorites]


Then the casual understanding will pass that, if the Senate actually delays a nominee for an entire year, and stalls until Hillary Clinton becomes president, she will just nominate Obama himself.

This won't happen unless Clinton gets Obama's explicit endorsement, like, now.
posted by infinitewindow at 2:41 PM on February 13, 2016 [4 favorites]


Ted "not a Canadian" Cruz has tweeted:

"Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement."

That won't be you, Ted.
posted by Wordshore at 2:41 PM on February 13, 2016 [20 favorites]


If he was retired, with his body of work, I would have abstained from commenting or just put the obdot.

Since so often Supremes hang on till death or complete failure of health, I have to observe that he is an individual whose death will mean potentially better lives for future people...so its hard to mourn. As I am not one to trot out tired cliches, vestiges of religious teachings, I'll not speak ill of the dead, but can speak well of his passing.
posted by sfts2 at 2:42 PM on February 13, 2016 [12 favorites]


Obama resigns, Biden nominates him.

I don't see Obama doing that. He's not a "they're gonna call me corrupt? I'll show them corrupt" kinda guy.
posted by infinitewindow at 2:42 PM on February 13, 2016 [3 favorites]


I have only this to say about Scalia and his life
posted by AGameOfMoans at 2:43 PM on February 13, 2016


*

I feel like I should feel bad for feeling so happy about this.

Gonna be an action-packed campaign. There's literally no way that President Obama could get an appointment approved before the election, right? Assuming that's the case, that means we'll have an even number of justices at the election, right? Certainly the GOP is prepped to steal the election again as they did the first time Bush took the Presidency. What happens when the election goes to a hung court?
posted by mwhybark at 2:43 PM on February 13, 2016 [2 favorites]


Sign me up for the alternate history where Obama resigns and Biden nominates him.
posted by kalessin at 2:43 PM on February 13, 2016 [19 favorites]


He was a good friend to Ruth Bader Ginsburg. So if you're struggling to feel sadness for anyone who might be hurt by his loss, think of her.

Worse still, I have to imagine Justice Ginsburg is thinking some pretty dark thoughts. She is even older than him (82).
posted by anotherpanacea at 2:44 PM on February 13, 2016 [38 favorites]


Don't speak ill of the dead don't speak ill of the dead

He was certainly… entertaining!
posted by DoctorFedora at 2:44 PM on February 13, 2016 [4 favorites]


This won't happen unless Clinton gets Obama's explicit endorsement, like, now.

Quite the opposite; that would look blatantly like quid pro quo.
posted by XQUZYPHYR at 2:44 PM on February 13, 2016 [8 favorites]


One of the terrible symptoms of the modern partisan locked-mind era is anyone who doesn't happen to share your every political leaning is somehow instantly evil, no longer human or worthy of respect, even in death.

Doesn't seem like a great way to be.
posted by four panels at 2:44 PM on February 13, 2016 [19 favorites]


Step 1 - Obama resigns.
Step 2 - Biden appoints Obama.
Step 3 - FOX News implodes.
posted by T.D. Strange at 2:44 PM on February 13, 2016 [18 favorites]


The next president! Are you fucking kidding me? Obama won a second term. Of four years.
posted by persona au gratin at 2:44 PM on February 13, 2016 [57 favorites]


Some possible good news, at least: "The longest Supreme Court confirmation process from nomination to resolution was Brandeis, at 125 days. Obama has 342 days left in office."

The last two and a half months of President Obama's term would be after the election, though. So there's no way an appointment could happen then.
posted by zarq at 2:44 PM on February 13, 2016 [29 favorites]


Wait, what's this about appointing Obama? Is that really a possibility? I have an embarrassingly low understanding of how the supreme court works so I can't tell if you guys are joking or if this could be a Thing -- and even then I don't understand why Obama would want to be a SCJ...
posted by Hermione Granger at 2:45 PM on February 13, 2016 [2 favorites]


I didn't agree with or respect his views. Neither do I respect the views of his son, Paul, who is a Catholic priest.

But Paul Scalia presided over the Arlington funeral of my grandfather-in-law, a decorated World War II veteran. It was a fine moment for the family. On the video of the ceremony, you can hear my newborn son crying in the background. So, I don't exactly feel like spiking the football upon hearing this news.

Godspeed, Scalia. Long live the justice that shall replace you.
posted by Cool Papa Bell at 2:45 PM on February 13, 2016 [22 favorites]


.
posted by spinifex23 at 2:45 PM on February 13, 2016


"Roses are red,
Violets are invasive.
This one's quite sweaty,
and rather abrasive."

Happy Valentine's Day, America!
- Death

ps. sorry about edgar mitchell
7

posted by mrjohnmuller at 2:46 PM on February 13, 2016 [6 favorites]


There's literally no way that President Obama could get an appointment approved before the election, right?

No, Sotomayor took 2 months. Kagan took 5.5. Theres MORE than enough time.

Except he won't be allowed to, because Republicans do not care about whether the government is able to function.
posted by T.D. Strange at 2:46 PM on February 13, 2016 [11 favorites]


She is even older than him (82).

Another good reason to appoint a woman when you appoint a liberal judge: longer lifespan, better odds.
posted by Miko at 2:46 PM on February 13, 2016 [77 favorites]


This far down the thread and the bad taste award for a comment goes to that Ted Cruz tweet.

A little soon, Ted? Maybe?
posted by rokusan at 2:46 PM on February 13, 2016 [8 favorites]




Wait, what's this about appointing Obama? Is that really a possibility? I have an embarrassingly low understanding of how the supreme court works so I can't tell if you guys are joking or if this could be a Thing -- and even then I don't understand why Obama would want to be a SCJ...

William Howard Taft was Chief Justice of the Supreme Court after his presidency (not immediately afterward, though).
posted by dhens at 2:47 PM on February 13, 2016 [5 favorites]




A tragedy. And the day before he could've seen the first nationwide-legally married couples celebrate their first Valentine's.
posted by schroedinger at 2:47 PM on February 13, 2016 [7 favorites]


dis_integration: "Nah, judges get recess appointed all the time. According to wikipedia, "Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795.""

"all the time" and the example is from 1795.

I detect irony.
posted by chavenet at 2:47 PM on February 13, 2016 [6 favorites]


As a lawyer, I see a lot of people on my social media waxing very "he was a great legal mind." As a 4th amendment advocate, I am sad for the loss of an articulate defender.

But as a woman, queer person, friend/family member of many other people victimized by his horrible decisions and his horrible laws, and citizen of this country absolutely made worse by his jurisprudence, I really couldn't be happier. And yes, I will be toasting this news tonight.
posted by likeatoaster at 2:48 PM on February 13, 2016 [36 favorites]


I like to think Antonin Scalia is united with Jesse Helms in whatever twisted version of heaven those two men believed in.
posted by Nelson at 2:48 PM on February 13, 2016 [2 favorites]


I feel like "nominating Obama" is an awesome political football, but I think it's only going to happen in an alternate timeline. I mean, we'll see, but.
posted by kalessin at 2:48 PM on February 13, 2016 [4 favorites]


There is precedent. Taft served as Chief Justice after his single term as President, and felt that his time as CJ was the highlight of his career, even going so far as to joke that he barely remembered being President.
posted by infinitewindow at 2:48 PM on February 13, 2016 [4 favorites]


Twitter is talking FLOTUS for SCOTUS
posted by Uncle at 2:49 PM on February 13, 2016 [37 favorites]


Obama could troll Cruz and appoint Craig Mazin to the Supreme Court.
posted by pxe2000 at 2:49 PM on February 13, 2016 [6 favorites]


[southern] Well bless his heart. [/southern]
posted by ROU_Xenophobe at 2:49 PM on February 13, 2016 [36 favorites]


.
posted by MisplaceDisgrace at 2:49 PM on February 13, 2016


"all the time" and the example is from 1795.

I detect irony.


I was trying to indicate that recess appointments to the Supreme Court were solidly established in the history of the nation with that kind of precedent. But they do also happen all the time. Not to the SCOTUS, but to federal courts.
posted by dis_integration at 2:50 PM on February 13, 2016 [7 favorites]


Wait, what's this about appointing Obama? Is that really a possibility? I have an embarrassingly low understanding of how the supreme court works so I can't tell if you guys are joking or if this could be a Thing -- and even then I don't understand why Obama would want to be a SCJ...

Obama has a JD in Constitutional Law and there is previous precedent for a former President to be a SCOTUS Justice (Taft.) In addition, unlike Presidential qualifications, there is no actual requirement to be a Justice; it's solely up to the President's selection and approval of the Senate.

There has actually been a not-so-crazy idea floated around for some time that if a Democrat won the 2016 election, they would easily consider Obama as a possible Justice. This was frequently suggested of Clinton back in the late 90's as well until he was stripped of his SCOTUS admittance after his impeachment.
posted by XQUZYPHYR at 2:51 PM on February 13, 2016 [9 favorites]


I'm not a lawyer, although my work deals directly with legal issues and scholarship. But I have never understood the argument that Scalia is WAS (I love writing that!) a "brilliant legal mind." His opinions generally read to me like ad hoc justifications for his personal feelings and political views. I found their legal logic tortured and casuistical. I haven't read a lot of them, but more than a few.
posted by spitbull at 2:51 PM on February 13, 2016 [23 favorites]


I'm not an American so I wasn't immediately sure who Scalia was but (I guess mostly due to MeFi) I had a nearly unconscious, intuitive reaction that somehow I should now think "yay" or "good riddance" about this death.

I don't know how to feel about that.
posted by Pyrogenesis at 2:51 PM on February 13, 2016 [6 favorites]


This is so huge amid an already confusing and crazy election. Many people who don't really think about it will be confused by how much attention is paid to this one judge's death. All I can hope is that this makes more people realize how important elections are for Supreme Court nominations.

Well, that and hope for a better justice
posted by Red Loop at 2:51 PM on February 13, 2016 [1 favorite]


Obama has already remarked that he is uninterested in joining the Supreme Court.
posted by GameDesignerBen at 2:51 PM on February 13, 2016 [2 favorites]


Natural causes is a euphemism for witch's curse, right?
posted by Catblack at 2:51 PM on February 13, 2016 [15 favorites]


Yeah, I take no pleasure in another man's death, but I'm not about to mourn him, either.

And anyone who thinks they know how this is going to play out is wrong. The Senate may be slightly more sane than the House, but only slightly. Filibustering of a Supreme Court Nominee remains permissible, an opportunity I doubt Cruz will let go by. Recess appointments can happen, but only if the Senate adjourns, and it was the DEMOCRATS who played games with adjournment to block recess appointments in 2008, so I'm sure the Republicans won't hesitate.

On the other hand, a Democrat Majority Senate AND a democratic president in 2016 is possible, even likely -- and even more likely if Trump gets the nomination, and Senators know that. So if they fail to get some kind of deal now, they could wind up worse off next year.

In short, at this moment, the only thing to say about what happens next is ¯\_(ツ)_/¯.
posted by Frayed Knot at 2:52 PM on February 13, 2016 [7 favorites]


Obama has already remarked that he is uninterested in joining the Supreme Court.

I think "joining the Supreme Count" and "being the fifth liberal on the Supreme Court" are two rather different things. He could change his mind -- but I doubt it.
posted by Frayed Knot at 2:53 PM on February 13, 2016 [3 favorites]


Before the right canonizes him I think it is important to note that no he wasn't some great legal mind. He had some strong points legally but in general he was willing to abandon any sort of principal if it advanced a conservative political position.Thomas is vastly superior in terms if being consistent to their legal viewpoint even if I find the legal views he espouses to be wildly reactionary.

Scalia was first and foremost a political creature and that will forever stain his jurisprudence.
posted by vuron at 2:54 PM on February 13, 2016 [38 favorites]


Sheldon Adelson just sent out his bank statement with a note, "whichever of you gets me nominated gets half."
posted by delfin at 2:54 PM on February 13, 2016 [1 favorite]


Before the right canonizes him I think it is important to note that no he wasn't some great legal mind.

I think most people "in the know", including the other 8 justices, would strongly, strongly disagree with that.
posted by roomthreeseventeen at 2:55 PM on February 13, 2016 [9 favorites]


At times like these, I always enjoy looking in on the right-wing folks over at Free Republic. They're already suggesting foul play. So far, they want to know if anyone with ties to the White House was at the event, and they want the coroner to check the body for polonium.
posted by Short Attention Sp at 2:55 PM on February 13, 2016 [20 favorites]


Scalia had some great insults. But only the dumb media (#nerdprom? y'all aren't even smart!) thinks he's a great legal mind.
posted by persona au gratin at 2:55 PM on February 13, 2016 [2 favorites]


It's "circle the wagons" time at the DNC and RNC right now. I'm expecting an onslaught of high-profile endorsements for establishment candidates in the presidential race in the next 72 hours.
posted by duffell at 2:56 PM on February 13, 2016


Man I better check out of this thread because of the if you can't talk well about the dead don't talk at all rule...

And where is that written anywhere in the constitution? An amendment? Nope? Oh well, then...
posted by ennui.bz at 2:56 PM on February 13, 2016 [15 favorites]


Obama resigns, Biden nominates him.
posted by schoolgirl report at 2:41 PM on February 13 [8 favorites +]

This is better than season two of House of Cards (US).
posted by Room 641-A at 2:56 PM on February 13, 2016 [17 favorites]


. *
posted by JoeXIII007 at 2:57 PM on February 13, 2016 [2 favorites]


I mean that sentence.
posted by Room 641-A at 2:57 PM on February 13, 2016 [4 favorites]


But as a woman, queer person, friend/family member of many other people victimized by his horrible decisions and his horrible laws, and citizen of this country absolutely made worse by his jurisprudence, I really couldn't be happier.

The metaphor I came up with is that sometimes the big pile of shit has a bag of dope in it.
posted by rhizome at 2:57 PM on February 13, 2016 [3 favorites]


Can't say anything good about the deceased so drawing on my fine command of the English language, will say nothing.

But as long as I am here, happy Valentines Day, mefites.
posted by madamjujujive at 2:58 PM on February 13, 2016 [6 favorites]




Seth Meyers: "Early Vegas line on how next Supreme Court nomination will go has 'laid back and chill' as huge underdog."
posted by bluecore at 2:58 PM on February 13, 2016 [18 favorites]


When is the last time the conservatives didn't have a majority on the SCOTUS? I can't remember when the balance tipped. When Souter replaced Brennan? When Thomas replaced Marshall?
posted by great_radio at 2:59 PM on February 13, 2016 [2 favorites]


Filibustering of a Supreme Court Nominee remains permissible, an opportunity I doubt Cruz will let go by.

Yeah this is what's so crazy about this. There are two republican Senators in the race now. If they can delay the confirmation, and win the Presidency, then they get to nominate. It's a wild situation to be in. The wackiness factor this election just went up to 11.
posted by dis_integration at 3:00 PM on February 13, 2016 [7 favorites]


sometimes the big pile of shit has a bag of dope in it.

Labrador?
posted by spitbull at 3:00 PM on February 13, 2016 [3 favorites]


AFAICT the last recess appointment to the Supreme Court was Associate Justice Potter Stewart under Eisenhower.

I'm betting the Senate is going to stay in session at least until November.
posted by ChurchHatesTucker at 3:00 PM on February 13, 2016 [2 favorites]


Scalia had a hateful sense of humor. Ie, the gay joke he made during an important gay civil rights trial. Nothing like disrespect coming straight from the bench.
posted by Nelson at 3:00 PM on February 13, 2016 [21 favorites]


What time is it? IT'S NOMI TIME
posted by item at 3:01 PM on February 13, 2016 [9 favorites]


Or: recess appointment of Michelle, followed by her appointment by the next president.
posted by persona au gratin at 3:01 PM on February 13, 2016 [6 favorites]


Yes he was definitely a political creature who would make any argument necessary to forward his own special kind of conservative agenda. Definitely.

But the fact that he could always find, always argue (and argue well), and always write such convincing justifications does, in many ways, make him a very talented legal mind, doesn't it?
posted by rokusan at 3:01 PM on February 13, 2016 [2 favorites]


.
posted by brevator at 3:02 PM on February 13, 2016


Yeah, there are conservatives whose policies hurt the disenfranchised. And then there are conservatives whose policies hurt the disenfranchised and who also happen to be massive, colossal assholes. Scalia was one of the latter.
posted by persona au gratin at 3:03 PM on February 13, 2016 [5 favorites]


It makes him the product of a Jesuit education, I believe.
posted by spitbull at 3:03 PM on February 13, 2016 [5 favorites]


He will appoint a moderate, consensus pick- someone he'll praise after "consulting with friends from both sides of the aisle" and then a bunch of Senators up for re-election will throw a hissy fit.

Then the casual understanding will pass that, if the Senate actually delays a nominee for an entire year, and stalls until Hillary Clinton becomes president, she will just nominate Obama himself.



On the other hand, a Democrat Majority Senate AND a democratic president in 2016 is possible, even likely -- and even more likely if Trump gets the nomination, and Senators know that. So if they fail to get some kind of deal now, they could wind up worse off next year.



This is my read. Obama nominates a centrist and dares the Senate to oppose him. They're not going to get a better deal if the GOP loses in November.
posted by HumuloneRanger at 3:03 PM on February 13, 2016 [19 favorites]


But the fact that he could always find, always argue (and argue well), and always write such convincing justifications does, in many ways, make him a very talented legal mind, doesn't it?

I never thought they were very convincing. Go ask the nearest hippie.
posted by teponaztli at 3:03 PM on February 13, 2016 [6 favorites]


.
posted by Tanizaki at 3:03 PM on February 13, 2016


I'm betting the Senate is going to stay in session at least until November.

The Senate calendar is actually here; though it's the privilege of the Majority Leader to alter it.

The Senate will, in general, be in session with occasional weeks off for holidays and state work through November.

Let's be clear here: if Obama appoints someone in the next month or two, it will be a Herculean effort on McConnell's part to prevent a vote without directly admitting he's doing so.
posted by XQUZYPHYR at 3:04 PM on February 13, 2016 [13 favorites]


My condolences to his family and loved ones on the loss of Scalia the man, and my congratulations to the country for the end of the career of Scalia the justice.
posted by neutralmojo at 3:05 PM on February 13, 2016 [3 favorites]


> continue to keep it away from literal "rot in hell"/ "I piss on his grave"
Aw, what a shame.

The only good thing he did was give the impression that there should be a coherent philosophy when interpreting the constitution. That he rarely did that is another matter.
posted by beerbajay at 3:06 PM on February 13, 2016


The Senate will confirm a center-left justice over the weeping and gnashing of teeth of Cruz and Rubio.
posted by persona au gratin at 3:06 PM on February 13, 2016 [6 favorites]


What kind of West Texas ranch private party was this? Is there any chance the circumstances were sordid?
posted by Flashman at 3:07 PM on February 13, 2016 [10 favorites]


But the fact that he could always find, always argue (and argue well), and always write such convincing justifications does, in many ways, make him a very talented legal mind, doesn't it?

so convincing that his own words were used to justify the exact opposite of his position to the benefit of gay people all over this fine country. i'm not sure that's the sort of talent you're applauding though...
posted by nadawi at 3:07 PM on February 13, 2016 [9 favorites]


How? The Republicans control the Senate. If they don't want a nominee approved there will be no nominee approved.
posted by Justinian at 3:07 PM on February 13, 2016 [2 favorites]


To my mind a great legal mind would be consistent to their internal legal framework even if that framework was bad for my political allies. The fact that Scalia's own arguments would consistently be used against him in recent years highlights his internal inconsistency in the face of political consideration.
posted by vuron at 3:08 PM on February 13, 2016 [8 favorites]


Yeah, Scalia's great crime wasn't that he crafted strong, conservative arguments, it was that he so nakedly promoted an agenda that was, first and foremost, hypocritical of its own purported foundation. So many things he twisted to fit his brand of "what the Framers intended," and so close to a party line that when he did deviate from that, it was noteworthy.
posted by teponaztli at 3:08 PM on February 13, 2016 [46 favorites]


if Obama appoints someone in the next month or two, it will be a Herculean effort on McConnell's part to prevent a vote without directly admitting he's doing so.

You're acting like such an admission would harm anyone's career in the Senate.
posted by Room 101 at 3:09 PM on February 13, 2016 [9 favorites]


Does this now become the biggest issue in the coming election? I think so.
posted by OHenryPacey at 3:09 PM on February 13, 2016 [3 favorites]


it will be a Herculean effort on McConnell's part to prevent a vote without directly admitting he's doing so

He's made it clear that he's going to oppose Obama on everything else. I don't see how him admitting that he's blocking this "clearly impartial" justice (because you know it will be like that) actually hurts him. Cruz, Rubio and others are all going to make a bunch of theatrics no matter what happens. That's what their base expects. These guys have maintained power by going more to the right. Why would we believe that they would do anything less than the maximum amount of obstruction that they are capable of?
posted by MysticMCJ at 3:09 PM on February 13, 2016 [2 favorites]


Yes, I think this election became all SCOTUS all the time.
posted by roomthreeseventeen at 3:10 PM on February 13, 2016 [2 favorites]


context: potus >> scotus graphic
posted by pjsky at 3:10 PM on February 13, 2016 [6 favorites]


*
posted by SansPoint at 3:10 PM on February 13, 2016


.
posted by Going To Maine at 3:10 PM on February 13, 2016


if Obama appoints someone in the next month or two, it will be a Herculean effort on McConnell's part to prevent a vote without directly admitting he's doing so.

He can just do it and say that's what he's doing. Senators are remarkably insulated from public opinion. McConnell is proud of being obstructionist and the Republican base would admire him for whatever skullduggery it took to prevent a liberal justice being appointed. As others have noted, It would also probably drive Democratic GOTV efforts, so it's a double edged sword for the right.
posted by dis_integration at 3:11 PM on February 13, 2016 [6 favorites]


Recess appointments can happen, but only if the Senate adjourns, and it was the DEMOCRATS who played games with adjournment to block recess appointments in 2008, so I'm sure the Republicans won't hesitate.

In fact, the Republicans already do this, and Obama tried to nominate people during a "recess in all but name", but was rebuffed by the courts. There will be no new Supreme Court justice during Barack Obama's term.

In fact, if Clinton or Sanders are elected, I doubt we'll ever see another Supreme Court justice appointed for years and years. The Republicans are anywhere form fine with to ecstatic about crippling governance at the federal level.
posted by dirigibleman at 3:11 PM on February 13, 2016 [3 favorites]


Because the Senate isn't in the hands of total mouthbreathers, as the House is. Dems will pick up a few of the old guard GOP (like McCain and McConnell) and filibusters will be overcome.
posted by persona au gratin at 3:11 PM on February 13, 2016 [1 favorite]


You're acting like such an admission would harm anyone's career in the Senate.

The Republicans currently running for Senate seats in Florida, Indiana, Illinois, Kentucky, New Hampshire, Ohio and North Carolina all sort of come to mind.
posted by XQUZYPHYR at 3:11 PM on February 13, 2016 [10 favorites]


How? The Republicans control the Senate. If they don't want a nominee approved there will be no nominee approved.

Because we only need four GOP Senators to break ranks, and many of them are up for re-election in blue or purple states. If Democrats can't create some political consequences for obstructionism on this point of all points, we are officially the most spineless party in the universe. It would be historically unprecedented and we should be calling it treason.

More reasonable/moderate Senators might also at least have some reservations about creating precedents that would curtail their own power in the future, but maybe that's wishful thinking.
posted by dialetheia at 3:11 PM on February 13, 2016 [68 favorites]


But the fact that he could always find, always argue (and argue well), and always write such convincing justifications does, in many ways, make him a very talented legal mind, doesn't it?

The skills of a judge and the skills of an advocate are entirely different things. Great advocates often end up being bad judges.

Being a good writer does not make someone a good lawyer, and, as a legal professional from another system, I've often found the American focus on legal writing style somewhat confounding.

He did a lot of things that hurt a lot of people. He can't do that any more.
posted by howfar at 3:12 PM on February 13, 2016 [10 favorites]


Ehh. This is something in the Constitution, and I'd be surprised if McConnell tries to block non-radical nominees.
posted by persona au gratin at 3:12 PM on February 13, 2016 [2 favorites]


How is this going to affect Whole Woman's Health v. Cole?
posted by edeezy at 3:13 PM on February 13, 2016 [1 favorite]


I just remembered that when I discovered PredictIt last summer, I put down a couple of bets just for kicks. One was Who will be the next Justice to leave the Supreme Court? I bought shares in Scalia for $0.40/share.

(though in all honesty, I thought he would retire first)
posted by triggerfinger at 3:13 PM on February 13, 2016 [4 favorites]


One of the terrible symptoms of the modern partisan locked-mind era is anyone who doesn't happen to share your every political leaning is somehow instantly evil, no longer human or worthy of respect, even in death.

One of the terrible symptoms of the modern partisan locked-mind era is the notion that hatred for whole groups of people is merely "political." Politics is what we engage in to realize a shared and prior moral vision. Scalia did not share that vision with people who think that human worth should not contingent on their race, their orientation, their gender...it's hard not to think that this all must be unbearably abstract for anyone who would demote those issues to the level of pure politics.
posted by invitapriore at 3:13 PM on February 13, 2016 [66 favorites]


How? The Republicans control the Senate. If they don't want a nominee approved there will be no nominee approved.

Because it's odds on that it's going to be far, far worse for their negotiating position in 2017.
posted by Talez at 3:13 PM on February 13, 2016 [3 favorites]


Scalia lived his life mostly as a series of personal and professional successes, making it to the high end of male life expectancy in his country and dying painlessly in his sleep of natural causes. No one is gloating about him suffering or having a laugh at his expense for dying before his time because neither of those things happened. Being relieved that we can turn the page and see what's next doesn't diminish what he or his faithful would see as his achievements. They already happened. It doesn't retroactively shave precious days off of his life. He lived the entire thing as far as his body could take him and he's dead now. He won, in his way. People can probably be forgiven for being excited to see what comes next. It doesn't take away a single thing from him.
posted by DirtyOldTown at 3:13 PM on February 13, 2016 [32 favorites]


Yeah, I expect that Obama will nominate someone like this, and it will only take a few Republican senators up for re-election in blue/purple states to break ranks, and we'll have a new justice.
posted by LooseFilter at 3:14 PM on February 13, 2016 [7 favorites]


If Democrats can't create some political consequences for obstructionism on this point of all points, we are officially the most spineless party in the universe.

Oh dear.
posted by Artw at 3:14 PM on February 13, 2016 [11 favorites]


Srinivasan would be my prediction as well.
posted by Justinian at 3:14 PM on February 13, 2016


I hope someone checks again in a week or so - you can never be certain with monsters like Scalia.
posted by ryanshepard at 3:14 PM on February 13, 2016 [12 favorites]


Meanwhile, a 4-4 tie in the Court means the lower court ruling stands. So what was looking to be a horrendous Supreme Court session for liberals suddenly.....isn't. Public Unions are safe. Abortion Rights are safe. Obama's Immigration Rules will stand. One-person-one-vote remains unchanged.

In short, if you're a liberal, it's good news pretty much across the board.
posted by Frayed Knot at 3:14 PM on February 13, 2016 [50 favorites]


Republican strategy is going to be interesting. Are they going to go all in on blocking a Obama nominee even at the cost of losing in November or will they assent to a centrist pick and hope that they can make back a seat post election assuming Ginsberg steps down.

The smart move would be to cut losses now and play the long game but maybe they feel like this could be a major GOTV boost. But damn relying on Trump or Cruz to defeat Sanders or Clinton is risky as fuck
posted by vuron at 3:14 PM on February 13, 2016 [1 favorite]


Sorry for sounding like a dick, but this made my day. I hope his family has peace but he's helped destroy the capacity of the working and poor classes from enabling themselves to get a leg up in our 1984 oligarchy - good riddance
posted by glaucon at 3:14 PM on February 13, 2016 [3 favorites]


The best thing I can say about Scalia is that his worldview was, for the most part, consistent, and if he had been a justice in a fictional country I dare say I'd have liked him quite a bit. He wrote well. For obvious reasons, I liked his dissents better than his majority opinions; even when I thought he was wrong (often) he managed to make some good points. But his decisions, for all their elegance, did bad things to a lot of people, and probably set us back at least a generation on some fronts.

He was influential in a way that deserves recognition only if you pretend that his influence didn't do any damage in the real world. Much like how you'd commend someone for their ruthlessness if they were playing Risk or Diplomacy, but would condemn the same deft moves if they were performed in the real world with armies and ordnance.

Which is not to say that Scalia thought he was playing a game. I believe that he believed all the stuff he wrote. But given the outcomes I'm not sure that he deserves any credit for acting in good faith.
posted by savetheclocktower at 3:14 PM on February 13, 2016 [4 favorites]


I am sorry to hear of the loss of Scalia. While I often disagreed with his decisions, I loved the colorful and clear way he expressed them, particularly when he dipped into cultural touchstones to increase clarity - quoting horror movies, Sherlock Holmes, the Grimm Brothers, and hundreds more. He was a humorist as well as a jurist, and I appreciate the breath of earthiness he brought to the bench.

I also feel and worry for RBG, who has now lost two of her mainstays in a relatively short period of time, and has no political reason to hang on with his loss.
posted by corb at 3:15 PM on February 13, 2016 [3 favorites]


I don't see how him admitting that he's blocking this "clearly impartial" justice (because you know it will be like that) actually hurts him.

Because Obama's not going to nominate that person. I'm pointing out the pragmatic reality here. If you think he's nominating Elizabeth Warren or even himself, you're crazy. He will likely pick an older, established candidate from a red state with a longer-serving Senator like McCain or Hatch or Grassley backing them because of personal confidence with that person.

They will try to block this, but they won't for eight months. Cruz, for one, can't. He would literally have to stop campaigning to go back to Washington to maintain holds. All the while, the point would be made that 2017 likely brings a FAR more favorite Senate for Democrats than the current one does.

Obama is going to nominate the next Supreme Court Justice, and after the usual theatrics, he (and yes, it will likely be an old white guy) will be confirmed.
posted by XQUZYPHYR at 3:15 PM on February 13, 2016 [6 favorites]


Yeah, I expect that Obama will nominate someone like this

Haha, as of the time I clicked on the link, the last line of the article is:
With the passing of the piece of shit Justice Anton Scalia, there is further speculation that he will be President Obama's next Supreme Court nominee.
posted by zombieflanders at 3:16 PM on February 13, 2016 [7 favorites]


I am assuming that "natural causes" actually means "a surfeit of bile."
posted by The Elusive Architeuthis at 3:18 PM on February 13, 2016 [13 favorites]




The best thing I can say about Scalia is that his worldview was, for the most part, consistent

But he wasn't. He wasn't at all. He only genuflected toward constitutionality when it fit an outcome he wanted. Same with the "will of the people." Etc.

His decisions contradicted each other again and again. Good writer who crafted interesting dissents. But man, he was not at all consistent when it came to interpreting the law.
posted by zarq at 3:19 PM on February 13, 2016 [47 favorites]


and has no political reason to hang on with his loss

Her vote still matters when Kennedy swings to the right. Which he does more often than not.
posted by triggerfinger at 3:19 PM on February 13, 2016 [2 favorites]


I am sorry to hear of the loss of Scalia. While I often disagreed with his decisions, I loved the colorful and clear way he expressed them, particularly when he dipped into cultural touchstones to increase clarity - quoting horror movies, Sherlock Holmes, the Grimm Brothers, and hundreds more. He was a humorist as well as a jurist, and I appreciate the breath of earthiness he brought to the bench.

No, that was the worst part about him.

He was very clever and an entertaining writer but, especially in his later years, he let being clever and sarcastic overtake being clear and consistent. He was making bad, nakedly ideological arguments expressed with outright vitriol.

You don't want "earthiness" in a Supreme Court opinion, you want good jurisprudence and well thought-out arguments. I'm an attorney and there are jurists I disagree with but can respect their arguments. Scalia abandoned that in favor of being entertainingly snarky. Save that for your personal think pieces and articles, not decisions that affect the lives of millions.
posted by Sangermaine at 3:19 PM on February 13, 2016 [82 favorites]


(and yes, it will likely be an old white guy)

Actually, I think it almost definitely will not be. As I mentioned upthread, Sri Srinivasan is a likely choice.
posted by LooseFilter at 3:19 PM on February 13, 2016 [4 favorites]


I disagree, XQUZYPHYR.

If I'm Obama I nominate a qualified, respected but real Liberal. And I remind John McCain and the other handful of old school Republicans that Donald Trump is about to become the Republican Nominee, meaning they're going to loose not just the Presidency but the Senate. So either play ball with me now and put up with this Justice you don't like so much, or stand on the sidelines and watch my successor nominate Elizabeth Warren next January.

Sure, maybe Obama won't do that. But this crazy Presidential race COMPLETELY undercuts business as usual for this nomination.
posted by Frayed Knot at 3:20 PM on February 13, 2016 [22 favorites]


It's troubling to consider how much of a difference it would have made had this happened a week earlier.
posted by saturday_morning at 3:20 PM on February 13, 2016 [12 favorites]


The skills of a judge and the skills of an advocate are entirely different things. Great advocates often end up being bad judges.

You're right, of course.

Were I a better writer I would have made it more clear I was playing Devil's Justice, there.
posted by rokusan at 3:21 PM on February 13, 2016 [1 favorite]


McConnell just said the vacancy shouldn't be filled until next January.
posted by roomthreeseventeen at 3:21 PM on February 13, 2016 [4 favorites]


McConnell saying the position shouldn't be filled until the next president is elected.
posted by Room 641-A at 3:21 PM on February 13, 2016 [1 favorite]


Whoa.
posted by Room 641-A at 3:21 PM on February 13, 2016 [1 favorite]


I loved the colorful and clear way he expressed them, particularly when he dipped into cultural touchstones to increase clarity - quoting horror movies, Sherlock Holmes, the Grimm Brothers, and hundreds more. He was a humorist as well as a jurist, and I appreciate the breath of earthiness he brought to the bench.

I been giving you the benefit of the doubt? But, not anymore.
posted by valkane at 3:21 PM on February 13, 2016 [7 favorites]


Obama should put up a Harriet Miers type nominee (say Bill Ayers) so his real choice can skate through.
posted by drezdn at 3:22 PM on February 13, 2016 [2 favorites]


> McConnell just said the vacancy shouldn't be filled until next January.
hahhaha of course. Fuck that.
posted by beerbajay at 3:22 PM on February 13, 2016 [23 favorites]


We will be drinking the cocktail we invented after the last SCOTUS ruling on gay marriage.

It is called Scalia's Tears: gin, bitter lemon, Campari. Serve up or on the rocks, in a glass with a salted rim.
posted by rtha at 3:23 PM on February 13, 2016 [95 favorites]


While I often disagreed with his decisions, I loved the colorful and clear way he expressed them, particularly when he dipped into cultural touchstones to increase clarity - quoting horror movies, Sherlock Holmes, the Grimm Brothers, and hundreds more. He was a humorist as well as a jurist, and I appreciate the breath of earthiness he brought to the bench.

Ah, yes bon mots such as
[S]uppose all the States had laws against flagpole sitting at one time, you know, there was a time when it was a popular thing and probably annoyed a lot of communities, and then almost all of them repealed those laws. Does that make flagpole sitting a fundamental right?
or
But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even 'animus' toward such conduct. Surely that is the only sort of 'animus' at issue here: moral disapproval of homosexual conduct
or
The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.
HAHAHA FUCKING COLORFUL AND HILARIOUS
posted by zombieflanders at 3:23 PM on February 13, 2016 [101 favorites]


The Senate could hold things up for awhile, but not forever. The Congressional term ends January 4, while the Presidential term ends January 20. So he could still make a recess appointment in between terms, quasi-Marbury style.

It would also give Mitch McConnell a nice way to drag Ted Cruz off the campaign trail and keep him stuck in the Senate chamber, at least for awhile.
posted by Huffy Puffy at 3:24 PM on February 13, 2016 [1 favorite]


He was a humorist as well as a jurist, and I appreciate the breath of earthiness he brought to the bench.

One of the things you learn if you are lucky enough to watch good judges at work is how important it is for litigants to feel respected and that their arguments are taken seriously, even if they don't ultimately prevail. Humor and earthiness have a very limited role to play here, especially at the highest levels. Scalia's lack of professionalism in his later opinions actually had some observers wondering if he were perhaps experiencing the onset of dementia.
posted by praemunire at 3:24 PM on February 13, 2016 [56 favorites]


Were I a better writer I would have made it more clear I was playing Devil's Justice, there.

It's common when the Devil's Justice doesn't observe stare decisis. Necronomical Originalists leave no question where they stand.
posted by rhizome at 3:24 PM on February 13, 2016 [3 favorites]


really love seeing "FLOTUS for SCOTUS" on twitter. Think we can get "bell hooks for SCOTUS" trending?
posted by pjsky at 3:25 PM on February 13, 2016 [6 favorites]


Let's remember the man not with our bile but with his own:

Antonin Scalia's Case for Torture

"We should start calling this law SCOTUScare." - from his King v. Burwell dissent.

"Even if the Texas law does deny equal protection to “homosexuals as a class,” that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality." - from his Lawrence v. Texas dissent

"If Scalia doesn't think being gay is destructive -- that it isn't the same as being a kleptomaniac, for example -- his opinion has changed in the last 15 years. Because he said it in 1996. To my fucking face." Me, on Metafilter, October 7, 2013
posted by MCMikeNamara at 3:25 PM on February 13, 2016 [47 favorites]


> "McConnell saying the position shouldn't be filled until the next president is elected."

... What possible reasoning could be given for this position other than, "Because that's what I'd like to happen, that's why!"
posted by kyrademon at 3:25 PM on February 13, 2016 [9 favorites]




"I am not a strict constructionist, and no one ought to be.... A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." — Justice Scalia
posted by John Cohen at 3:25 PM on February 13, 2016 [2 favorites]


(and yes, it will likely be an old white guy)

It definitely won't be someone old. The stakes are too high to give the position to someone who will die or retire in the next 20 years.
posted by great_radio at 3:25 PM on February 13, 2016


Yes, let's not forget that it wasn't even three months ago when he made these horrific comments on race in the affirmative action case.
posted by triggerfinger at 3:26 PM on February 13, 2016 [12 favorites]


McConnell just said the vacancy shouldn't be filled until next January.

And wouldn't it be ironic if it was someone nominated by President Sanders...
posted by ennui.bz at 3:26 PM on February 13, 2016 [5 favorites]


I am no happier that he is dead than I am that he lived. May his name be forgotten.
posted by haltingproblemsolved at 3:27 PM on February 13, 2016 [5 favorites]


From Twitter: "This would be an excellent day for Justice Clarence Thomas to continue his tradition of just doing whatever Justice Scalia does."
posted by dephlogisticated at 3:28 PM on February 13, 2016 [77 favorites]


Wikipedia: Because the Constitution does not set any qualifications for service as a Justice, the President may nominate anyone to serve.

In that case, and being some kind of Justice is surely a good start anyway, just a thought:

#JessamynForSCOTUS
posted by Wordshore at 3:28 PM on February 13, 2016 [61 favorites]


McConnell just said the vacancy shouldn't be filled until next January.

To be fair, the last time a president nominated a Justice during their eighth year in office, we were stuck with Antonin Scalia.
posted by XQUZYPHYR at 3:28 PM on February 13, 2016 [7 favorites]


"I'm not glad he's dead, but I'm glad he's gone." - Chicago Mayor Harold Washington on the passing of (the first) Mayor Daley.
posted by zooropa at 3:28 PM on February 13, 2016 [2 favorites]


> Devil's Justice

Definitely my next band name.
posted by BungaDunga at 3:28 PM on February 13, 2016 [4 favorites]


To be fair, the last time a president nominated a Justice during their eighth year in office, we were stuck with Antonin Scalia.

....that's actually not true. Scalia was confirmed in the fall of 1986, two years before the election.
posted by roomthreeseventeen at 3:30 PM on February 13, 2016 [1 favorite]


Timing is everything.
posted by valkane at 3:30 PM on February 13, 2016


> "McConnell saying the position shouldn't be filled until the next president is elected."

... What possible reasoning could be given for this position other than, "Because that's what I'd like to happen, that's why!">



"Under the Constitution's Black President Clause..." according to one twitter wit
posted by madamjujujive at 3:31 PM on February 13, 2016 [29 favorites]


This feels like the thing that everything surrounding Obama's presidency has been leading up to. His re-election, his legislation, the Tea Party emerging in response, Republicans being completely obstructionist. They all feel like pieces on the chess board being moved into place for this.

We've all been enjoying give-no-fucks Obama for the last year or so. I guess we're about to find out whether he still has a fight in him. If he decides to go for broke and push for the appointment of a strong liberal justice, it could be the defining political fight of the 21st Century.
posted by dry white toast at 3:31 PM on February 13, 2016 [63 favorites]


PREDICTION: the headlines on Monday are going to be all the right wing commentators "outraged" over insensitive liberal "gloating" over Scalia's death.

Nobody does outrage better than Limbaugh, Hannity, Levin, Krauthammer, et. al.
posted by zooropa at 3:31 PM on February 13, 2016 [4 favorites]


Based on his writings and public statements, Scalia came across as a mean-spirited, unprincipled bigot who enjoyed using his power to hurt those he considered to be his inferiors. He did a lot more harm than good in his life, and the world definitely has been improved by his leaving it.
posted by Nat "King" Cole Porter Wagoner at 3:32 PM on February 13, 2016 [36 favorites]


Wow, per roomseventeen's SCOTUSblog link this likely changes the outcome of Friedrichs v. California Teachers Association and Evenwel v. Abbott!
posted by great_radio at 3:32 PM on February 13, 2016 [4 favorites]


Could Obama put Bernie Sanders on the Supreme Court? Gives Bernie a shot at major influence; clears a path for Hillary; drives the right into a state of apoplexy.

I was thinking of this the other way around. Unlike Bernie (who has a degree in political science), Hillary Clinton went to Yale Law School, and actually is a lawyer. Instead of, at most, two terms as president (if she makes it), she could wield her influence on the Court for years to come.

There is precedent. Taft served as Chief Justice after his single term as President...

Unlike Obama, though, Taft actually wanted to be on the Court. It was his life's dream, and he just used the prestige of having been President – in the end – to achieve his goal.
posted by LeLiLo at 3:33 PM on February 13, 2016 [7 favorites]


great_radio, I think it depends on if the remaining justices elect to issue a 4-4 decision. They don't have to, I don't think.
posted by roomthreeseventeen at 3:34 PM on February 13, 2016




Unlike Obama, though, Taft actually wanted to be on the Court. It was his life's dream, and he just used the prestige of having been President – in the end – to achieve his goal.

How times have changed.
posted by saturday_morning at 3:34 PM on February 13, 2016 [1 favorite]


Imagine whom Trump would nominate.

Ollie North
Sean Hannity
John Bolton
The first elderly white man who kneels before Trump and chants "My life for you"
posted by delfin at 3:35 PM on February 13, 2016 [31 favorites]


Would/could Obama agree to save the seat and then resign?
posted by Room 641-A at 3:35 PM on February 13, 2016


If we get closer to the end of the year and it looks like the Republicans won't be winning the presidency I bet Congress will be a lot more amenable to putting Obama's nominee through.
posted by dilaudid at 3:35 PM on February 13, 2016 [1 favorite]


Obama's pick should be someone so unimpeachable (wink), that if the GOP does block the nomination, they end up showing themselves too be such obstructionists that they lose badly in November. It probably wouldn't hurt to nominate an Asian-American, to make the case that the court should be more representative of the population as well.
posted by CheeseDigestsAll at 3:35 PM on February 13, 2016


Supreme Court Justice Gary Busey just became a real thing, yo.
posted by roomthreeseventeen at 3:36 PM on February 13, 2016 [6 favorites]


Yes, let's not forget that it wasn't even three months ago when he made these horrific comments on race in the affirmative action case.

They weren't horrific or racist. He had a good point, as several black commentators, like John McWhorter, pointed out. I'm confident those black commentators aren't racist against themselves.
posted by John Cohen at 3:36 PM on February 13, 2016 [2 favorites]


PREDICTION: the headlines on Monday are going to be all the right wing commentators "outraged" over insensitive liberal "gloating" over Scalia's death.


Given that a Republican candidate for President couldn't even wait a whole tweet before pivoting to the political ramifications of Scalia's death, something tells me the gloves may be off this time.
posted by dry white toast at 3:36 PM on February 13, 2016 [5 favorites]


2016, you are a mindfuck. bowie AND scalia in the first 2 months? is that meant to balance things out or something? this is a deviant game you are playing.
posted by fingers_of_fire at 3:36 PM on February 13, 2016 [18 favorites]


The follow-on effects of something like R obsctructionism in an election year would be absolutely epic.
posted by rhizome at 3:37 PM on February 13, 2016 [1 favorite]


Personally, I think Obama should nominate Clinton to the Supreme Court. You know i'm right.
posted by entropicamericana at 3:38 PM on February 13, 2016 [8 favorites]


"I'm not glad he's dead, but I'm glad he's gone." - Chicago Mayor Harold Washington on the passing of (the first) Mayor Daley.

Bette Davis, on word of Joan Crawford's death, is rumored to have said, "I was told only to speak good of the dead. Joan Crawford is dead... good."
posted by philip-random at 3:38 PM on February 13, 2016 [16 favorites]


I was thinking of this the other way around. Unlike Bernie (who has a degree in political science), Hillary Clinton went to Yale Law School, and actually is a lawyer. Instead of, at most, two terms as president (if she makes it), she could wield her influence on the Court for years to come.

I'd take that deal.
posted by Room 641-A at 3:38 PM on February 13, 2016 [6 favorites]


There will be no new Supreme Court justice during Barack Obama's term.

No way they leave an opening unfilled until after Obama's term. He'll get to fill it. Any delay tactics could too easily be turned back around.

In fact, if Clinton or Sanders are elected, I doubt we'll ever see another Supreme Court justice appointed for years and years.

I despise most of the GOP, but no way are they leaving a branch of government to flounder that long.
posted by cjorgensen at 3:38 PM on February 13, 2016


Imagine whom Trump would nominate.

He would nominate his sister, of course.
posted by ennui.bz at 3:39 PM on February 13, 2016 [3 favorites]


David Frum: There is one president at a time and he retains all his constitutional powers & duties until his term ends.
posted by dry white toast at 3:39 PM on February 13, 2016 [15 favorites]


In the immortal words of Bette Davis speaking of Joan Crawford's death “You should never say bad things about the dead, you should only say good . . . Antonin Scalia is dead. Good.”
posted by duplux at 3:39 PM on February 13, 2016 [2 favorites]


Hey, anyone see more Clinton emails were released today? What luck on timing, huh?
posted by cjorgensen at 3:39 PM on February 13, 2016 [1 favorite]


Has the GOP's obstructionism cost them anything recently?
posted by drezdn at 3:40 PM on February 13, 2016 [3 favorites]


Hillary Clinton went to Yale Law School, and actually is a lawyer.

She'd be the anti-Scalia, right down to being creepy and wrong on the Fourth Amendment. Say what you will about the old bastard, but at least that stopped clock was right twice a day.
posted by fifthrider at 3:40 PM on February 13, 2016 [8 favorites]


And the myth of Scalia's supposed jurisprudential consistency is just bullshit. He wasn't consistent in the least. He was only "consistent" in applying his own ideology.

Setting aside that Originalism itself is a fundamentally inconsistent position and inherently self-contradictory, Scalia even didn't apply it consistently.

For example, I know many conservatives who were just shocked with Scalia's concurrence in Gonzales v. Raich because a driving theme of the "Rehnquist Revolution" in the 90s and 2000s was the rolling back of Commerce Clause jurisprudence established since the New Deal. They were so sure that Scalia, the arch-Originalist and states' rights champion, would rule against the federal government's destruction of Raich's medical marijuana plants which were legal under California state law. After all, the government's argument that it had the power to enforce federal drug laws over state drug laws even in the case of home use stemmed from Wickard v. Filburn, the bête noire of judicial conservatives for decades and symbol of all they despised about Commerce Clause jurisprudence.

Nope. Scalia hates drugs, and so he twisted himself into knots to find a way to vote with the liberals of the Court. It was the same story over and over again in Scalia's later years. He had a position he personally favored, and then found some way to justify ruling that way even if it completely destroyed his supposed Originalist position.
posted by Sangermaine at 3:40 PM on February 13, 2016 [60 favorites]


"Justice Scalia's Big Personality."
posted by zarq at 3:42 PM on February 13, 2016


It's Obama. He'll probably appoint a Pro-Choice republican, Judicial equiv. of Chuck Hagel type.
posted by drezdn at 3:43 PM on February 13, 2016 [4 favorites]


"The Court has mistaken a Kulturkampf for a fit of spite." Romer v. Evans, 517 U.S. 620, 636 (Scalia, J., dissenting).

Scalia literally thought he was engaged in a form of warfare against homosexuality, and that that was fine, and okay to admit in his judicial opinions.

(And as a mark against his scholarship: the original Kulturkampf was the attempt by the Prussian state to assert its authority over the Catholic church. A downright bizarre analogy for a Catholic and someone who wanted the power of the secular state limited to make.)
posted by praemunire at 3:43 PM on February 13, 2016 [11 favorites]


When I read he died on a west Texas ranch, naturally I immediately wondered if he had been shot in the face by Dick Cheney.
posted by Daddy-O at 3:43 PM on February 13, 2016 [78 favorites]


The world is a slightly better place now that he is no longer in a position to do damage. That's about the nicest way to put it, I think.
posted by a lungful of dragon at 3:43 PM on February 13, 2016 [2 favorites]


No way they leave an opening unfilled until after Obama's term. He'll get to fill it. Any delay tactics could too easily be turned back around.

Can you explain that to me, please, cjorgensen? Turned around how?

All the Republicans have done is obstruct. It's cost them nothing, and wins points with the Tea Party.

The more I think and read, the more I think the most likely outcome here is that the GOP Leadership attempts to block anything from happened, but the GOP Senator's up for re-election in Blue States, along with a few Old School GOP'ers undercut that by aligning with Democrats to allow a nomination to go forward.

But I truly don't see any downside to the GOP attempting to keep the vote from happening.
posted by Frayed Knot at 3:44 PM on February 13, 2016 [5 favorites]


All the Republicans have done is obstruct. It's cost them nothing, and wins points with the Tea Party.

It quite possibly loses them the White House.
posted by roomthreeseventeen at 3:45 PM on February 13, 2016 [7 favorites]


In regards to a recess appointment, didn't the Supreme Court rule in the last couple of years that the Senate's fake sessions still counted as not-recess? I.e., everyone goes home for the summer, but some close to DC Senator shows up every week to gavel a 'session' in and out to prevent recess appointments? So recess appointments are a thing of the past, as far as I know.
posted by tavella at 3:45 PM on February 13, 2016 [2 favorites]




This is certainly one way to make Republicans stare into the void of a Trump presidency.
posted by dry white toast at 3:46 PM on February 13, 2016 [2 favorites]


> It quite possibly loses them the White House.
We can hope.
posted by beerbajay at 3:46 PM on February 13, 2016


Hasn't the Senate been avoiding recess for a long time to prevent Obama's recess appointments?

The Republicans will do whatever they can to prevent an Obama nominee from getting through, if only because it could mean changing Citizens United.
posted by drezdn at 3:47 PM on February 13, 2016


Presumably, this was a necessary consequence of transplanting Scalia's brain into Alito's body.
posted by klangklangston at 3:47 PM on February 13, 2016 [3 favorites]


Has the GOP's obstructionism cost them anything recently?

IIRC, Obama tried to nominate Elizabeth Warren to head some minor consumer agency, but the GOPs rejected her. And so now she's a senator. BWA ha ha.
posted by Melismata at 3:48 PM on February 13, 2016 [25 favorites]


So besides Sri Srinivasan who are some other possibles?

Neal Katyal might be fun although I doubt Obama would put him up.
posted by vuron at 3:49 PM on February 13, 2016


I was idly wondering if Trump could theoretically nominate himself, if elected, without resigning the presidency. Then I realized Trump was probably having the same idle thought as me. Scary feeling.
posted by joeyh at 3:49 PM on February 13, 2016 [4 favorites]


Lindsay Graham just said on MSNBC that, because of the (Democratic) Senate rules changes on judicial appointments, he would now only support a "consensus" nominee from Obama:

"Someone like Orrin Hatch."
posted by pjenks at 3:49 PM on February 13, 2016 [5 favorites]


(And as a mark against his scholarship: the original Kulturkampf was the attempt by the Prussian state to assert its authority over the Catholic church. A downright bizarre analogy for a Catholic and someone who wanted the power of the secular state limited to make.)

I think his position was that this is the government forcing the religious to do something against their beliefs. It's a ridiculous, backwards view of the issue but it's where all these "religious liberty" assholes come from.
posted by Sangermaine at 3:50 PM on February 13, 2016 [2 favorites]


Correct, tavella, in June of 2014 in National Labor Relations Board v. Noel Canning the SCOTUS decided a break of up to 10 days wasn't enough of a recess for II.2.3 appointments to be made.
posted by nicwolff at 3:50 PM on February 13, 2016


Here's a list of names previously mentioned in connection with an Obama SCOTUS appointment.
posted by ourobouros at 3:50 PM on February 13, 2016 [2 favorites]


This is slightly reminding me of the response to Margaret Thatcher's death, which I was also uncomfortable with. I feel like, for most public figures, the public persona and ideology are a different thing from the essentially unknown and unknowable private person, with their private relationships and history. I'm glad Mrs Thatcher is not Prime Minister and I'll be glad if Thatcherism ever goes away again but I'm not glad that she, that particular woman / mother / friend / wife, is dead. I admit the principle doesn't hold all the way down - I find it hard to seriously feel bad that Hitler died - but I think it at least holds for people who haven't literally killed anyone themselves.

Many people were driven to suicide as a result of Thatcher's policies. Perhaps their families and friends have a right to their own feelings.
posted by walrus at 3:51 PM on February 13, 2016 [38 favorites]


Bernie Sanders: My thoughts and prayers are with Justice Scalia's family and colleagues, who mourn his passing.

Drop the mic, Bernie.
posted by dry white toast at 3:51 PM on February 13, 2016 [121 favorites]


In regards to a recess appointment, didn't the Supreme Court rule in the last couple of years that the Senate's fake sessions still counted as not-recess? I.e., everyone goes home for the summer, but some close to DC Senator shows up every week to gavel a 'session' in and out to prevent recess appointments? So recess appointments are a thing of the past, as far as I know.

Sort of.

A recess is a recess, while a non-recess is not a recess, and the Senate gets to decide when it's in recess. The POTUS can no longer wait for the senate to take a mid-session break and make an appointment now, but has to wait until the between-session adjournment at the end of the year. So if Obama wants to make a recess appointment, he has to do it this January.
posted by dis_integration at 3:51 PM on February 13, 2016 [4 favorites]


I'm not proud of this, but "West Texas Ranch party" is bringing up images of the kind of shindig where you'd need to put down plastic sheeting.
posted by Mrs. Davros at 3:51 PM on February 13, 2016 [6 favorites]


I am reminded of Bette Davis' comment: “You should never say bad things about the dead, only good…Joan Crawford is dead...Good.”

It's a seriously bad situation for McConnell either way. Delay and he increases the odds that he'll lose the Senate by invigorating the Democratic GOTV. Allow the nomination and face the wrath of Tea Party idiots and every GOP presidential candidate. Oh, this is just delightful.
posted by Ber at 3:52 PM on February 13, 2016 [4 favorites]


So besides Sri Srinivasan who are some other possibles?

Rachel Maddow said that Obama could look to appoint someone who has already been vetted and is moderate. She mentioned Jeh Johnson of Homeland Security
posted by triggerfinger at 3:52 PM on February 13, 2016


I do wonder if the GOP stalls to try to punt the appointee to the next president, but here's one reason I think they may not: If they draw a line in the sand and declare they will not allow Obama to appoint a new justice to the SC, then (aside from looking obstructionist, which won't play well in toss up Senate seats the GOP is defending) they will make the presidential election all about the Supreme Court. Now stop and look at how that would be. The Republicans would make this election about Roe v. Wade. The Democrats would make it about Citizens United, Net Neutrality, marraige equality, and the clean air plan. If you're the GOP, trying hard to win the presidency with a horrid slate and to defend a Senate map that's stacked against you - do you really want that fight?
posted by azpenguin at 3:52 PM on February 13, 2016 [7 favorites]


Here's a list of names previously mentioned in connection with an Obama SCOTUS appointment.

That's like a betting slip.
posted by valkane at 3:52 PM on February 13, 2016 [2 favorites]


Sanders conspicuously leaving himself out of the category of people who mourn Scalia's passing, there. That's an ice Bern.
posted by fifthrider at 3:53 PM on February 13, 2016 [31 favorites]


This is it. This is why Lawrence Lessig stopped running for the Democratic nomination. This is why his Mayday PAC didn't succeed. This is his chance.
posted by Apocryphon at 3:53 PM on February 13, 2016 [10 favorites]


Revisiting Romer is shocking because you think it can't have been as bad as you remembered it:
When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins-and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. § 6-4(b); Executive Committee Regulations of the Association of American Law Schools § 6.19, in 1995 Handbook, Association of American Law Schools. This law-school view of what 'prejudices' must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws...
(Romer, 517 U.S. at 652-53.)

He was disgusted that law firms couldn't just refuse to hire f*ggots, and that such conduct would be deemed to reflect a "'prejudice.'" Such elitism!
posted by praemunire at 3:54 PM on February 13, 2016 [20 favorites]


"Someone like Orrin Hatch."

I saw that. I can't believe he kept a straight face. Someone just lost a bet.
posted by Room 641-A at 3:54 PM on February 13, 2016 [12 favorites]



The Simply Breathtaking Consequences Of Justice Scalia’s Death

Scalia's final gift to his devout Catholic faith was making millions of liberals believe there is a God.
posted by XQUZYPHYR at 3:54 PM on February 13, 2016 [29 favorites]


"God bless Anthony Scalia, finest Sup Ct Justice RIP" -- Michele Bachmann, reminding us all what a shining light she is.
posted by Frayed Knot at 3:55 PM on February 13, 2016 [5 favorites]


Interviewer: You believe in heaven and hell?
Scalia: Oh, of course I do. Don’t you believe in heaven and hell?

No.
Oh, my.

Does that mean I’m not going?
[Laughing.] Unfortunately not!

Wait, to heaven or hell?
It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.

But you don’t have to be a Catholic to get into heaven? Or believe in it?
Of course not!

Oh. So you don’t know where I’m going. Thank God.
I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?

Can we talk about your drafting process—
[Leans in, stage-whispers.] I even believe in the Devil.

You do?
Of course! Yeah, he’s a real person.
posted by gwint at 3:56 PM on February 13, 2016 [8 favorites]


I'm super excited to see the reality television show our future President Donald Trump will organize to select the next supreme court justice to replace Antonin Scalia.
posted by jeffburdges at 3:57 PM on February 13, 2016 [13 favorites]


Lawrence Lessig as anything in the real political world is an anime dream. I love the guy, but it's like saying William Gibson will be Secretary of Cyberspace.
posted by valkane at 3:57 PM on February 13, 2016 [48 favorites]


I assume we'll get someone born in the 60s if for no other reason that locks in that seat as liberal for at least 2-3 decades. Katyal being born in 1970 would make 4 decades no completely unheard of especially with advances in medical technology.

But in general if you want maximum longetivity you want to go with a female due to increased average life span
posted by vuron at 3:57 PM on February 13, 2016


I think his position was that this is the government forcing the religious to do something against their beliefs.

Sorry, I could have put this quote in more context: he thought that Colorado's anti-gay constitutional amendment was the Kulturkampf (thus, a good thing). He was arguing that a "fit of spite" against homosexuals might not be constitutionally acceptable, but noble cultural warfare against them passed muster.
posted by praemunire at 3:58 PM on February 13, 2016 [1 favorite]


300+ fucking days with a vacancy on the supreme court?


Drop the goddmanned hammer. I don't know what they can do from a parliamentary standpoint, but enough. Enough consensus, and pretending that this is okay. As an entire singular block, the democrats should be on every fucking channel every goddamned day describing this, not as politics as usual, but full-stop constitutional crisis.

Yeah it's pearl clutching, but I'm fucking tired of seeing the goodguys outmessaged, outemotioned, and being content with getting kicked in the balls every day.

Man.. Now I understand the Trump appeal. I want Bernie Sanders to trump the fuck out of mconnell. I don't know what that means, but it's probably awesome.
posted by Lord_Pall at 3:58 PM on February 13, 2016 [59 favorites]


You guys, Joan Crawford has already been mentioned three times in this obit thread.

In the culture war case of Scalia v. McNamara, I won!
posted by MCMikeNamara at 3:58 PM on February 13, 2016 [21 favorites]


"Detractors derided John Tyler, who in 1841 became America's 10th President after William Henry Harrison died just weeks into his first term, as "His Accidency." Whether or not Tyler deserved the snub, he was a total flop when it came to putting nominees on the bench. Throughout his term, Tyler's opponents repeatedly thwarted his judicial (and sometimes Cabinet) nominations. During a 15-month span in 1844-45, Tyler put forward five men for Supreme Court confirmation a total of nine times. (John C. Spencer, Reuben H. Walworth, and Edward King all had their nominations scuttled more than once, and the full Senate never acted on John Read's nomination.) Only one of the five, Samuel Nelson, was confirmed to the high court."
posted by roomthreeseventeen at 4:00 PM on February 13, 2016 [6 favorites]


God, I wonder what this means for the Clean Power Plan, which was just suspended last week by SCOTUS in a 5-4 vote.

So as others have noted above and as I understand, a 4-4 tie means the lower court decision is upheld. So most likely either they tie 4-4 or Kennedy (I assume) votes for the CPP giving it a 5-3 win. If it's a 4-4 tie it's whatever the court of appeals decides on. That court is in the District of Columbia:

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit in January unanimously refused to grant a stay.

The court did expedite the case and will hear arguments on June 2, which is fast by the standards of complex litigation.


So that's moderately promising but nothing certain.

As someone who cares about climate change and how we generate electricity, that stay got issued at a heck of a time.
posted by A dead Quaker at 4:01 PM on February 13, 2016 [1 favorite]


I love the guy, but it's like saying William Gibson will be Secretary of Cyberspace.

I...you know how sometimes you didn't know there was a void in your life until something forces you to notice it?
posted by Sangermaine at 4:01 PM on February 13, 2016 [104 favorites]


In the culture war case of Scalia v. McNamara, I won!
Outliving your enemies works. For a while.
posted by valkane at 4:01 PM on February 13, 2016 [3 favorites]


it's like saying William Gibson will be Secretary of Cyberspace.

Well, that's because Bruce Sterling's a much more realistic choice.
posted by Apocryphon at 4:02 PM on February 13, 2016 [18 favorites]


" If Democrats can't create some political consequences for obstructionism on this point of all points, we are officially the most spineless party in the universe."

Yeah. That sounds about right.
posted by schmod at 4:02 PM on February 13, 2016 [5 favorites]


You guys, Joan Crawford has already been mentioned three times in this obit thread.

Given how fast and hard the comments are coming in, it's hard to post and keep up.

A third of the best lines on this thread have already been said by my wife, who's surfing cable news, chortling, and on her second celebratory vodka and Zup.
posted by Ber at 4:02 PM on February 13, 2016 [11 favorites]


Drop the goddmanned hammer. I don't know what they can do from a parliamentary standpoint, but enough. Enough consensus, and pretending that this is okay. As an entire singular block, the democrats should be on every fucking channel every goddamned day describing this, not as politics as usual, but full-stop constitutional crisis.

To be fair, it's not a constitutional crisis, but something explicitly permitted by the constitution. The Advice and Consent clause doesn't say anything about speediness, and the Senate was specifically created to slow down the legislative process.
posted by dis_integration at 4:03 PM on February 13, 2016 [4 favorites]


"Under the Constitution's Black President Clause..." according to one twitter wit

And....

"Apparently, according to @SenateMajLdr we only elect Black Presidents to 3/5th of a term. #scalia #SupremeCourt"
posted by zarq at 4:03 PM on February 13, 2016 [90 favorites]


"I refuse to attend his funeral. But I will write a very nice letter explaining that I approve of it." ~Mark Twain (slightly modified)
posted by pjsky at 4:03 PM on February 13, 2016 [3 favorites]


All hail west Texas
posted by Philipschall at 4:03 PM on February 13, 2016 [8 favorites]


Lawrence Lessig as anything in the real political world is an anime dream. I love the guy, but it's like saying William Gibson will be Secretary of Cyberspace.

Lessig was a young Republican and clerked for *Scalia*: be careful what you wish for.
posted by ennui.bz at 4:03 PM on February 13, 2016 [6 favorites]


Holy Fuck.
posted by MoonOrb at 4:03 PM on February 13, 2016


["Given how fast and hard the comments are coming in, it's hard to post and keep up. "

TELL ME ABOUT IT. ]

posted by Eyebrows McGee at 4:04 PM on February 13, 2016 [47 favorites]


Thrilled. Can't wait for the appointment battle.
posted by Conrad-Casserole at 4:04 PM on February 13, 2016


Lessig was a young Republican and clerked for *Scalia*: be careful what you wish for.

at least he grew up.
posted by valkane at 4:05 PM on February 13, 2016 [2 favorites]


Well, if we're betting on replacements, put me down for Jacqueline Nguyen. Recently (2012) confirmed by the Senate for the 9th Circuit Court, woman, Vietnamese-American, born 1965. I know nothing about her judicial philosophy, but the basic biographical sketch sounds good.

On preview, I would also be fine with Joan Crawford.
posted by Spathe Cadet at 4:05 PM on February 13, 2016 [12 favorites]


Tom of SCOTUSblog says he expects the court will still limit/strike down affirmative action, 4-3.
posted by roomthreeseventeen at 4:06 PM on February 13, 2016


.

Gratitude.
posted by Joey Michaels at 4:06 PM on February 13, 2016


The only nominee the Republicans would accept is Benghazi.
posted by drezdn at 4:08 PM on February 13, 2016 [14 favorites]




at least he grew up.

He didn't, really. He just built a fantasy realm for himself where he would single-handedly change the Constitution and reform campaign finance, either by calling a Constitutional convention or becoming President to push that single issue then resign.

Outside of IP law he's a loon with little grasp of reality.
posted by Sangermaine at 4:09 PM on February 13, 2016 [8 favorites]


A third of the best lines on this thread have already been said by my wife, who's surfing cable news, chortling, and on her second celebratory vodka and Zup.

Lots of talking back to the TV at my house with wildly "inappropriate" zingers flying about. None that I can repeat in this thread.
posted by futz at 4:09 PM on February 13, 2016


300+ fucking days with a vacancy on the supreme court?

Bring the Iranian Hostages clock out of the archives, and put it to good use again. "DAY 271 WITHOUT AN APPOINTMENT".
posted by Capt. Renault at 4:09 PM on February 13, 2016 [14 favorites]


Longest confirmation of current SCOTUS: 106 days (Clarence Thomas)
Obama term left: 341 days
posted by bluecore at 4:10 PM on February 13, 2016 [1 favorite]


Lifetime appointments make living political. You cannot separate those
posted by Ferreous at 4:10 PM on February 13, 2016 [9 favorites]


I would never speak ill of the dead. But luckily, Elvis Costello would. That's the best I can do.
posted by saulgoodman at 4:10 PM on February 13, 2016 [7 favorites]


Meanwhile, a 4-4 tie in the Court means the lower court ruling stands. So what was looking to be a horrendous Supreme Court session for liberals suddenly.....isn't. Public Unions are safe. Abortion Rights are safe. Obama's Immigration Rules will stand.

Not really. Republicans have spent years stacking the lower district courts and state courts with conservatives and obstructing Obama's replacements. This means lots of conservative lower court decisions will be allowed to stand. A 4-4 court is much more friendly to conservatives than a 5-4 liberal court so they have no incentive to rush a confirmation.
posted by JackFlash at 4:11 PM on February 13, 2016 [4 favorites]


McConnell just said the vacancy shouldn't be filled until next January.



he will change his tune once trump gets nomination.
posted by TheLittlePrince at 4:12 PM on February 13, 2016 [2 favorites]


Huckleberry Hound I mean Lindsey Graham suggested that Orrin Hatch be nominated as a consensus candidate. Are you serious? That's the level of cooperation we can expect.
posted by Justinian at 4:12 PM on February 13, 2016 [1 favorite]


Outside of IP law he's a loon with little grasp of reality.
I agree, but at least he's not a big meanie.
posted by valkane at 4:13 PM on February 13, 2016 [1 favorite]


I have a mildly unsettling feeling that the Republicans actually think that they can win in November, which is no doubt going to create all sorts of havoc over the next few months. They don't even know what's good for themselves anymore, and the self-destruction is going to be messy.

Remember the number of politicians and pundits who were shocked when Romney lost the election, just like every non-partisan poll said he would?
posted by schmod at 4:13 PM on February 13, 2016 [6 favorites]


I actually don't want the Senate to approve Obama's nominee before Election Day – he gets to energize a whole electoral demographic for free! How about this: Obama can wait to nominate whoever best complements the eventual Dem nominee, then if the Senate doesn't go Dem he can make a recess appointment during the official intersession break right before he leaves office on January 20. This just keeps getting better!
posted by nicwolff at 4:14 PM on February 13, 2016 [6 favorites]


Well, if we're betting on replacements, put me down for Jacqueline Nguyen. Recently (2012) confirmed by the Senate for the 9th Circuit Court, woman, Vietnamese-American, born 1965. I know nothing about her judicial philosophy, but the basic biographical sketch sounds good.

The Ninth Circuit is (in)famously liberal. I don't see the Republicans agreeing to anyone from there. If you were looking for an Asian-American Justice, I think a good bet would be Denny Chin from the Second Circuit. He's a very competent jurist but hasn't done anything particularly ideologically inflammatory, at least not enough to count him out from realistic consideration.
posted by Sangermaine at 4:14 PM on February 13, 2016 [5 favorites]


that noise you heard was Ruth Bader Ginsburg becoming 1.38888888% more powerful

SHE RISES
posted by aihal at 4:15 PM on February 13, 2016 [35 favorites]


Ari Melber, a lawyer himself, is doing a very nice job on MSNBC this afternoon. It's refreshing to have such an informed voice asking the questions.
posted by pjenks at 4:15 PM on February 13, 2016


he's a loon with little grasp of reality.

Sounds like he'll fit in fine with the rest of the Washington crowd! Hey-o!
posted by Apocryphon at 4:16 PM on February 13, 2016 [3 favorites]


that noise you heard was Ruth Bader Ginsburg becoming 1.38888888% more powerful

SHE RISES


It was probably her sobbing. They were friends.
posted by MoonOrb at 4:16 PM on February 13, 2016 [10 favorites]


I actually don't want the Senate to approve Obama's nominee before Election Day

The Senate shooting down a liberal nominee before the election would not only energize liberal voters in the Presidential election, it would make every Senate race relevant.
posted by dry white toast at 4:17 PM on February 13, 2016 [9 favorites]


So educate me please...what happens with cases that have been heard but not had a decision announced? Will there still be some cases announced based on 9 votes?
posted by beaning at 4:18 PM on February 13, 2016


Oh...the GOP debate is tonight.
posted by Room 641-A at 4:18 PM on February 13, 2016


I may be the fourth or fifth to say this here, but the GOP debate tonight should prove interesting.
posted by y2karl at 4:19 PM on February 13, 2016 [1 favorite]


2016: it takes and then it takes...
posted by allthinky at 4:19 PM on February 13, 2016 [1 favorite]




So educate me please...what happens with cases that have been heard but not had a decision announced? Will there still be some cases announced based on 9 votes?
SCOTUSblog says anything Scalia's voted on but hasn't been announced yet is void.
posted by lilac girl at 4:20 PM on February 13, 2016 [22 favorites]


nicwolff, pardon my french, but fuck that. The presidency is nothing, the Supreme Court is everything.
posted by likeatoaster at 4:20 PM on February 13, 2016 [3 favorites]


Oh...the GOP debate is tonight.

Fuck no. I wouldn't survive watching this, my heart just won't be able to take it. I'll read about the highlights / lowlights in the morning.
posted by kanewai at 4:20 PM on February 13, 2016 [1 favorite]


Scalia's last official act seems to be denying a stay of execution.

"Hi! Welcome to Purgatory! Remember me?"
posted by Pater Aletheias at 4:21 PM on February 13, 2016 [27 favorites]


The Senate shooting down a liberal nominee before the election would not only energize liberal voters in the Presidential election, it would make every Senate race relevant.

Yeah, I don't see Obama sitting down here. Buck-it.
posted by pjenks at 4:21 PM on February 13, 2016 [2 favorites]


You'd think that these machinations would at least wait until Scalia got cold, but then, he was pretty cold to begin with...
posted by Capt. Renault at 4:22 PM on February 13, 2016 [2 favorites]


CNN sez Obama intends to nominate a justice.
posted by Rhaomi at 4:22 PM on February 13, 2016 [2 favorites]


You'd think that these machinations would at least wait until Scalia got cold, but then, he was pretty cold to begin with...

Worst part about this is the hagiography of Scalia as a powerful thinker and a good jurist. It's crap. "Originalism" was always code for "Scalia's political preference" and his decisions were only consistent in their intellectual dishonesty. He was the most nakedly partisan Justice to ever sit on the court, and it's entirely appropriate to politicize his death, when that's what he dedicated his entire life to doing to millions of others.
posted by T.D. Strange at 4:23 PM on February 13, 2016 [40 favorites]


...and on her second celebratory vodka and Zup.

1) what on earth is a Zup?
2) I get the sense there is quite a bit of celebratory cocktailing going on in this thread. I'm having mudslides myself.

I cannot believe that McConnell has has misstepped so quickly. I can imagine him feeling forced into acting quickly, but it's not really like him to buckle like this.

The walkback of this is gonna be delicious.
posted by butterstick at 4:24 PM on February 13, 2016 [3 favorites]


CNN sez Obama intends to nominate a justice.

Good. The Democrats need to force the issue and make the Republicans explain themselves every damn day if they're gong to take an obstructionist position. They need to hammer that issue non-stop.

If the Democrats can't do that they should just give up.
posted by Sangermaine at 4:25 PM on February 13, 2016 [21 favorites]


Re: Asian American candidates, Carol Lam would be an interesting choice.
posted by carmicha at 4:25 PM on February 13, 2016




Re: Cruz, Scalia's opinion about his eligibility for the presidency would have been interesting.
posted by carmicha at 4:26 PM on February 13, 2016 [1 favorite]


Re: Asian American candidates, Carol Lam would be an interesting choice.

The Republicans still hate her from when they forced her to quit under Bush. I doubt they'd go for it.
posted by Sangermaine at 4:28 PM on February 13, 2016 [1 favorite]


I hope they get that Rubio patch uploaded in time for the debate.
posted by Room 641-A at 4:29 PM on February 13, 2016 [19 favorites]


more like his mental gymnastics to justify his opinion would have been interesting
posted by entropicamericana at 4:30 PM on February 13, 2016 [1 favorite]


Is there any reason the Founding Fathers didn't put a limit on the time the Senate could take for a Justice confirmation? It seems absurd that one branch of government can delay and filibuster until the President no longer gets the power he's afforded by the Constitution, especially when two Senators running for President can have a hand in delaying that confirmation.
posted by bluecore at 4:30 PM on February 13, 2016 [5 favorites]


Appears McConnell's official statement supports Donald Trump's proposal to determine the next supreme court nominee by reality television show.
posted by jeffburdges at 4:30 PM on February 13, 2016 [1 favorite]


CNN sez Obama intends to nominate a justice.

Can you elaborate?
posted by cashman at 4:31 PM on February 13, 2016


Obama should nominate himself, hand Biden the reins for a couple of months.
posted by notyou at 4:31 PM on February 13, 2016 [2 favorites]


Maybe Obama would like a year or two off? Like, he can lay on the beach until the NEXT time?
posted by valkane at 4:33 PM on February 13, 2016 [1 favorite]


I will vote for whichever candidate promises to elect nominate Obama to the Supreme Court.
posted by maxsparber at 4:33 PM on February 13, 2016 [2 favorites]


Flipping to Fox News, they just showed a quote from Sen. Chuck Grassley claiming longstanding precedent for not confirming new justices in a presidential election year. Even Bret Baier had to mention there have been eight such justices so confirmed, including an Eisenhower recess appointment and the most recent case in 1976 (didn't catch the name).

cashman: ""CNN sez Obama intends to nominate a justice."

Can you elaborate?
"

That's all I saw, not sure if it was an official statement. I tried finding an article to link but there wasn't anything online yet.
posted by Rhaomi at 4:34 PM on February 13, 2016 [3 favorites]


The Republicans still hate [Carol Lam] from when they forced her to quit under Bush. I doubt they'd go for it.

Yeah, but they might view her Qualcomm stint as sufficient rehabilitation.
posted by carmicha at 4:34 PM on February 13, 2016


I can't imagine that the office of the POTUS wouldn't have an entire department of people dedicated to little other than maintaining a short list of nominee possibilities in the event of a SCOTUS opening.

Of course he intends to nominate a justice. In what hosed up version of reality would a sitting president with a year left in office NOT nominate someone?
posted by Mooski at 4:34 PM on February 13, 2016 [13 favorites]


I saw the CNN banner, too; curious what made them say that.
posted by ThePinkSuperhero at 4:35 PM on February 13, 2016


In what hosed up version of reality would a sitting president with a year left in office NOT nominate someone?

The one Republicans live in.
posted by dry white toast at 4:35 PM on February 13, 2016 [9 favorites]


As always, The Capitol Steps were on it, with their How do you solve a problem like Scalia. They did several about him IIRC.
posted by Melismata at 4:36 PM on February 13, 2016 [1 favorite]


Save Obama for the Clarence Thomas seat, to right a past wrong.
posted by drezdn at 4:37 PM on February 13, 2016 [4 favorites]


Appoint a seventy year old and let the Senate treat it as a punt.
posted by dances_with_sneetches at 4:38 PM on February 13, 2016 [3 favorites]




The Facebook Primary
posted by jeffburdges at 4:39 PM on February 13, 2016


Ah, the Pope Benedict technique.
posted by drezdn at 4:40 PM on February 13, 2016 [2 favorites]


Save Obama for the Clarence Thomas seat, to right a past wrong.

No, that would be Anita Hill, singing "I'd Like To Buy The World A Coke".
posted by Capt. Renault at 4:40 PM on February 13, 2016 [15 favorites]


It's going to be Richard Posner, isn't it.
posted by Apocryphon at 4:40 PM on February 13, 2016 [3 favorites]


Loretta Lynch might be a good strategic nominee. She just went through the whole vetting process less than a year ago.
posted by JackFlash at 4:41 PM on February 13, 2016


Judge Reinhold.
posted by drezdn at 4:41 PM on February 13, 2016 [31 favorites]


Why do I feel like the CNN thing is a "unnamed sources" type of deal that isn't based on anything.
posted by cashman at 4:42 PM on February 13, 2016 [1 favorite]


This makes me sad, because if reminds me of how we were tragically robbed of the possibility of having Beau Biden sit on the court.
posted by schmod at 4:43 PM on February 13, 2016 [6 favorites]


CBS's (Stream here) debate pregame has completely avoided any mention of Scalia. It's kinda weird.
posted by butterstick at 4:43 PM on February 13, 2016


Appoint a seventy year old and let the Senate treat it as a punt.

Fuck that. Obama should be in no fucks given mode. If he can get a pick confirmed, it would cement his own legacy as a transformative president, and at least partially mitigate the danger of a Republican ghoul winning the White House. He should nominate someone confirmable by any reasonable standard, then pull out all stops, make EVERY speech about how Republicans in Congress are shirking their Constitutional duty. Make them defend their indefensible obstruction at every turn. Either they will cave and hold a vote, or he will wield the biggest political cudgel imaginable for the Democrats throughout the election season.

There's no downside here for No Fucks Obama.
posted by T.D. Strange at 4:44 PM on February 13, 2016 [109 favorites]


Let us consider the worst case scenario (and please correct me if I am wrong). Republicans block-block-block in the Senate and remain in session to run out the clock. The election goes in favor of Republicans, they even capture the presidency. BUT on January 4th, the Congressional session ends and the new Congress is sworn in. The Presidential term ends January 20th. So while Congress is between sessions, Obama could do a 2-year recess appointment of the most Liberal candidate he can lay his hands on. The question is would Senate Republicans risk that versus 4 Republican Senators approving a more left-center judge?
posted by fings at 4:44 PM on February 13, 2016


when i read he had been found dead at a texas "ranch" my first thought was of ZZ Top's La Grange. alas my hopes were dashed.
posted by quonsar II: smock fishpants and the temple of foon at 4:45 PM on February 13, 2016 [7 favorites]


Why on earth would anyone think Obama wouldn't nominate a justice? Best case, he gets a third justice through because the Republicans wimp out before the year is done. Worst case, he makes the election all about the Supreme Court, makes the Republicans once again look bad, and drives Democrat turnout higher. There's no downside.
posted by tavella at 4:45 PM on February 13, 2016 [8 favorites]


It's going to be Richard Posner, isn't it.

I hope not.
posted by the man of twists and turns at 4:47 PM on February 13, 2016 [3 favorites]


cashman: "Why do I feel like the CNN thing is a "unnamed sources" type of deal that isn't based on anything."

but why should we have any reason to distrust cnn on something as crucial as the supreme court
posted by Rhaomi at 4:47 PM on February 13, 2016 [4 favorites]


So while Congress is between sessions, Obama could do a 2-year recess appointment of the most Liberal candidate he can lay his hands on.

They probably wouldn't go into formal recess. The House dissolves and is reformed every two years. The Senate just has a third of its members either be new or start new terms..
posted by ROU_Xenophobe at 4:47 PM on February 13, 2016 [1 favorite]


I like Sri.
posted by beagle at 4:47 PM on February 13, 2016


Crazy outside the box idea. Nominate John McCain. He's getting up in years, would probably make it through nomination, but most importantly... Might overturn Citizens United.
posted by drezdn at 4:48 PM on February 13, 2016 [1 favorite]


In my nightmares No Fucks Obama nominates Rahm Emanuel.
posted by benzenedream at 4:48 PM on February 13, 2016 [9 favorites]


Would McCain bring Palin as a sidekick?
posted by Artw at 4:49 PM on February 13, 2016 [4 favorites]


NOOOOOOOOOOOOOOOOO!!!!!!
posted by drezdn at 4:49 PM on February 13, 2016 [1 favorite]


CBS's (Stream here) debate pregame has completely avoided any mention of Scalia. It's kinda weird.

That'd be pretty much a dictionary definition of, "casting a pall."
posted by rhizome at 4:50 PM on February 13, 2016


I had zero intention of watching tonight's Republican debate, but now? Talk about appointment television.
posted by Short Attention Sp at 4:50 PM on February 13, 2016 [1 favorite]


It's going to be Richard Posner, isn't it.

Posner is 77. He missed his window a long, long time ago.
posted by T.D. Strange at 4:50 PM on February 13, 2016 [2 favorites]


In my nightmares No Fucks Obama nominates Rahm Emanuel.

Not remotely possible. Obama knows history - Rahm would be his very own Abe Fortas, and then some.
posted by fifthrider at 4:50 PM on February 13, 2016 [2 favorites]


Scalia died like he lived: peacefully, miscarrying justice.
posted by Ambrosia Voyeur at 4:51 PM on February 13, 2016 [12 favorites]


Tonight is an opportunity for the GOP candidates to stand tall and show quality and class in commenting on Scalia's death, the potential successor, and the process that leads to that person's appointment.

However, knuckle-dragging oafishness (read: status quo behavior) is expected. Popcorn at the ready.
posted by datawrangler at 4:52 PM on February 13, 2016 [2 favorites]


Why on earth would anyone think Obama wouldn't nominate a justice?

Nobody thinks Obama wouldn't nominate a justice. They're just getting their red herrings warmed up to call him somehow outrageous when he does the obvious. Like usual. Just like the second he does, it will be too soon for decency and be "politicizing" Scalia's death in an unseemly way.
posted by ctmf at 4:52 PM on February 13, 2016 [4 favorites]


McCain is literally Scalia's age.
posted by Apocryphon at 4:53 PM on February 13, 2016


It's going to be Richard Posner, isn't it.

Posner has 'absolutely no desire' to join SCOTUS, which 'isn’t a real court'

posted by andrewcooke at 4:53 PM on February 13, 2016 [6 favorites]


They're not going to ask about it at the debate. Nobody's had a chance to prepare remarks and "softball TV" won't want to piss them off like that.
posted by ctmf at 4:54 PM on February 13, 2016 [4 favorites]


Posner has 'absolutely no desire' to join SCOTUS, which 'isn’t a real court'

"I don't care if I lost! Chess is a dumb game for losers anyway!"

How sour are those grapes, Your Honor?
posted by Sangermaine at 4:55 PM on February 13, 2016 [4 favorites]


Sweet! We might get to see Rubio get stuck in another sub-routine.
posted by drezdn at 4:56 PM on February 13, 2016 [22 favorites]


Constitutional scholar Cliven Bundy is demanding access to the prison phone, which he's sure nominating committees are calling.
posted by delfin at 4:56 PM on February 13, 2016 [13 favorites]


Then again, Roberta McCain is 104 and still around, wow.
posted by Apocryphon at 4:57 PM on February 13, 2016




Sweet! We might get to see Rubio get stuck in another sub-routine.

Well, I did hear somewhere that the president does know exactly what he's doing...
posted by Weeping_angel at 4:58 PM on February 13, 2016 [5 favorites]


Sri Srinivasan worked in the Bush Solicitor General's office and spent a lot of time defending that administration's Gitmo policies trying to ensure that people can be held indefinitely without ever having access to anything resembling our justice system. While holding lawyers responsible for defending their unpopular clients is a dangerous game, at some point a guy potentially up for the Supreme Court cannot be advocating positions so fundamentally adverse to that document. It's certainly not the kind of nominee a lot of Obama voters thought they were voting for.
posted by zachlipton at 4:58 PM on February 13, 2016 [22 favorites]


"Justice Scalia knew every line in your brief and exactly where it was weak." --- Neal Katyal (fmr Solicitor General)
posted by pjenks at 4:59 PM on February 13, 2016 [2 favorites]


> Sweet! We might get to see Rubio get stuck in another sub-routine.

Let's tell him it's January 1, 1970 and see what happens!
posted by benito.strauss at 5:00 PM on February 13, 2016 [94 favorites]


One reason GOP came out so quickly is so they don't get asked why a guy confirmed 97-0 to appellate 3 years earlier is no longer acceptable.

(Sri Srinivasan)


Stanford Law grad, defender of Enron's Skilling and Solicitor General for 'W'. That nominee will totally energize the Dem base.

Since the Republican Senate has already announced it's intentions, there's no reason why the President shouldn't nominate someone who truly represents his vision, who is willing to defend his ideals (for a TV audience) every time the Republcans sling mud,or stand in the way of the constitution. Or, Obama could just nominate some polite Republican who is ok with abortion.
posted by ennui.bz at 5:00 PM on February 13, 2016 [3 favorites]


Who's making the popcorn for tonight's GOP debate?
posted by hangingbyathread at 5:01 PM on February 13, 2016 [1 favorite]




Who's making the popcorn for tonight's GOP debate?

Not a few people, it seems.
posted by datawrangler at 5:02 PM on February 13, 2016


Re: Asian-American candidates, would it be too much to hope for Goodwin Liu? Being filibustered out of a 9th Circuit seat, only to come back for SCOTUS, would be kind of amazing. He's currently sitting on the California Supreme Court (one year retrospective from 2012) including having a body of opinions to show how he actually performs as a jurist, that didn't exist before, and it would be nice to have a second West Coaster on the Court.
posted by cdefgfeadgagfe at 5:04 PM on February 13, 2016 [3 favorites]


Here's Mitch McConnell's full statement:
"Today our country lost an unwavering champion of a timeless document that unites each of us as Americans.

"Justice Scalia's fidelity to the Constitution was rivaled only by the love of his family: his wife Maureen his nine children, and his many grandchildren. Through the sheer force of his intellect and his legendary wit, this giant of American jurisprudence almost singlehandedly revived an approach to constitutional interpretation that prioritized the text and original meaning‎ of the Constitution.

"Elaine and I send our deepest condolences to the entire Scalia family.

"The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
posted by Brandon Blatcher at 5:04 PM on February 13, 2016 [1 favorite]


One of the terrible symptoms of the modern partisan locked-mind era is anyone who doesn't happen to share your every political leaning is somehow instantly evil, no longer human or worthy of respect, even in death.

the rejoicing you see here and elsewhere is that Scalia's 30 year time as a force in the single most important political institution of our country is over.

The opposite of "good" is "evil", yes? I'm no conservative like Scalia so what he did to delay social progress in this country was indeed not good -- opposing the good --and thus "evil".

Kyllo could have gone either way -- both sides are right -- but Scalia did do our society good by expanding our civil rights in this 4th Amendment area.

These acts of "good" were few and far between and are of course greatly outweighed by all the other shitty decisions he had a hand in; this list is long and is probably headed by Bush v Gore, for all the "evil" the Bush presidency let into the world, 2001-2008, stuff we're still addressing today.

doesn't happen to share your every political leaning

get real, man.

malefactor late Middle English: from Latin, from malefact- ‘done wrong,’ from the verb >malefacere, from male ‘ill’ + facer ‘do.’
posted by Heywood Mogroot III at 5:05 PM on February 13, 2016 [13 favorites]


So I assume that it's a pretty good bet that Mark Kirk votes for confirmation. He's fairly moderate, and he's up for reelection in a pretty blue state. Any other Republican senators likely to defect?
posted by ArbitraryAndCapricious at 5:05 PM on February 13, 2016


He should nominate someone confirmable by any reasonable standard...

Orrin Hatch? That's a recipe for the Senate going all out to humiliate some Republican stupid enough to stick their neck out, while the Democratic base feels like idiots looking for some reason why they should support another Republican in the SC. Look at the modern Republican party, that sort of script won't work anymore.
posted by ennui.bz at 5:06 PM on February 13, 2016 [1 favorite]


> The American people‎ should have a voice in the selection of their next Supreme Court Justice.

Isn't that why they elected Obama?
posted by beerbajay at 5:06 PM on February 13, 2016 [102 favorites]


"God bless Anthony Scalia, finest Sup Ct Justice RIP" -- Michele Bachmann, reminding us all what a shining light she is.

Especially considering his name wasn't Anthony.
posted by waitingtoderail at 5:07 PM on February 13, 2016 [71 favorites]


"The American people‎ should have a voice in the selection of their next Supreme Court Justice."

We did, by voting for the person who makes SC appointments. You asshole.
posted by Spathe Cadet at 5:07 PM on February 13, 2016 [50 favorites]


defender of Enron's Skilling

I disagree with this strongly. "Strongly" actually understates the case. Defense lawyers defend bad people. Because bad people are usually the ones on trial.

His work as SG is more problematic but that he was counsel for a bad guy? That's in no way a negative.
posted by Justinian at 5:07 PM on February 13, 2016 [15 favorites]


So CNN says whitehouse "sources" told Jake Tapper Obama intends to nominate someone.
posted by cashman at 5:08 PM on February 13, 2016


Flipping to Fox News, they just showed a quote from Sen. Chuck Grassley claiming longstanding precedent for not confirming new justices in a presidential election year. Even Bret Baier had to mention there have been eight such justices so confirmed, including an Eisenhower recess appointment and the most recent case in 1976 (didn't catch the name).

Grassley's not just an idiot, he's a completely hypocritical idiot, because he was among the senators that confirmed Anthony Kennedy to the Court in February of the election year of 1988.
posted by zombieflanders at 5:08 PM on February 13, 2016 [30 favorites]


Of course Obama's going to nominate someone. I'm sure that he's had a list of possibilities put together for years and is probably making calls as we speak.
posted by octothorpe at 5:09 PM on February 13, 2016 [4 favorites]


His work as SG is more problematic but that he was counsel for a bad guy? That's in no way a negative.

It's negative if you want the Democratic base to be energized by the Republicans blocking his appointment.
posted by ennui.bz at 5:10 PM on February 13, 2016


How do we go into an election without a full court? What if we face another recount scenario? Madness.
posted by feloniousmonk at 5:10 PM on February 13, 2016 [2 favorites]


Obama needs to nominate someone we can all get behind. That is why he must submit Taylor Swift's name.
posted by drezdn at 5:10 PM on February 13, 2016 [19 favorites]


> The opposite of "good" is "evil", yes?
Dualism is easily one of the most insidious cultural concepts and the root of much of the simplistic thinking on the religious/conservative side of things.
posted by beerbajay at 5:10 PM on February 13, 2016 [8 favorites]


Evil is a loaded term, yes. Which is why I was putting it in scare-quotes.
posted by Heywood Mogroot III at 5:12 PM on February 13, 2016


Thank god the Republicans don't have a history of obstructionism and foul play. Otherwise I'd be concerned for Obama's nominee.
posted by evilDoug at 5:12 PM on February 13, 2016 [6 favorites]


I disagree with this strongly. "Strongly" actually understates the case. Defense lawyers defend bad people. Because bad people are usually the ones on trial.

I, in general, agree. People accused of crimes need good lawyers and we shouldn't punish defense lawyers for advocating for their clients. That said, Chief Justice Roberts has led this Court into an incredibly pro-business place, where the Justices are willing to accommodate some liberal interests as long as a corporation's rights aren't threatened in any way. Someone who's spent a substantial part of his career doing appellate work for these same corporations in does not make think he is likely to do anything to counter this troubling trend.

Srinivasan's work for the Bush Administration is also more troubling.
posted by zachlipton at 5:12 PM on February 13, 2016 [12 favorites]


I disagree with this strongly. "Strongly" actually understates the case. Defense lawyers defend bad people. Because bad people are usually the ones on trial.


Also, equating defending murderers and rapists with defending rich, business con-men like Skilling is a disservice to murders and rapists. No one puts a gun to your head and says you have to be a 7 figure law partner defending even richer scumbags. I mean, at least get into honest work like class-action trawling.
posted by ennui.bz at 5:13 PM on February 13, 2016 [2 favorites]


The American people‎ should have a voice in the selection of their next Supreme Court Justice.

That is what Congress is for, right, Congressman?
posted by RobotVoodooPower at 5:14 PM on February 13, 2016 [5 favorites]


President Obama is set to address the nation concerning the passing of Justice Antonin Scalia at 8:30 PM EST according to CBS News.

This is going to be an interesting debate this evening. I have not tuned in to previous events, but tonight I am making an exception as the situation on the ground has shifted in a very unexpected way.
posted by PROD_TPSL at 5:14 PM on February 13, 2016 [3 favorites]


"So I assume that it's a pretty good bet that Mark Kirk votes for confirmation. He's fairly moderate, and he's up for reelection in a pretty blue state."

I agree -- he's also from Illinois and so part of his electability in a pretty blue state hinges on his good relationship with the hometown boy made good, Obama. He's also in a heck of a dogfight for his seat, against the popular Tammy Duckworth, female Thai-American multiple-amputee purple-heart Iraq war veteran helicopter pilot. And Kirk's made a few super-bad gaffes in public lately that have the press questioning whether his strokes have done more permanent damage than claimed. I think Kirk HAS to campaign as being a reasonable, very very centrist guy who makes Washington work ... I think he's one of the few Republicans in the Senate genuinely hurt electorally by accusations of obstructionism, and he's uniquely damaged by accusations of obstructing Obama particularly.
posted by Eyebrows McGee at 5:16 PM on February 13, 2016 [23 favorites]


That is why he must submit Taylor Swift's name.

This is, of course assuming she is willing to recuse herself in the case of US v. Katy Perry
posted by drezdn at 5:19 PM on February 13, 2016 [8 favorites]




Mitch McConnell: “The American people‎ should have a voice in the selection of their next Supreme Court Justice.”

"Hi, I'm the Senate Majority Leader, and the greatest tribute I feel I can offer to a notoriously intractable Supreme Court Justice who claimed to be 'originalist,' but who blatantly violated this principle on many occasions, is to offer up jingoistic encomiums to democracy which blatantly contradict the stated and explicit goals of the authors of the Constitution."
posted by koeselitz at 5:22 PM on February 13, 2016 [57 favorites]


#OurDumbSenator

(sigh, Knock out of the box, Feingold)
posted by drezdn at 5:22 PM on February 13, 2016 [3 favorites]


Obama's long-game strategy is going to get another dimension of validation - in the rear mirror - because of Scalia's passing. It must be what? 80% chance that the court will now flip [L], irrespective of whether BO or next pres gets nomination (given HRC's odds). That removes a sizeable chunk of acute worry in terms of his legacy (though of course, anything may happen & nothing is certain). I bet they are fucking dancing in the white house right about now!
posted by peacay at 5:27 PM on February 13, 2016 [1 favorite]


That is why he must submit Taylor Swift's name.

I'm looking forward to the press conference in 2021 when she breaks with President West:
"Mr. President, do you have any words on today's decision?"

"As a matter of fact, I do: Yo, Taylor, I'm really happy for you, Imma let you finish, but Kagan had one of the best dissents of all time!"
posted by zombieflanders at 5:27 PM on February 13, 2016 [12 favorites]


What channel is the debate on? Fox?
posted by SillyShepherd at 5:27 PM on February 13, 2016


CBS
posted by Rhaomi at 5:28 PM on February 13, 2016


Obama will nominate Amal Clooney.
posted by humanfont at 5:29 PM on February 13, 2016 [5 favorites]


Imminent youtube live-stream: President Obama Delivers a Statement
posted by mrjohnmuller at 5:31 PM on February 13, 2016 [4 favorites]


Ramsey Clark, the Attorney General for LBJ, is still alive. Not really a suggestion, just wow.
posted by dances_with_sneetches at 5:35 PM on February 13, 2016 [2 favorites]


My vote is for Judge Wood. Feminist pioneer, liberal, brilliant, ties to Texas and Illinois, strong on the first amendment and religious liberty.
"She was also instrumental in developing the University of Chicago’s first policy on sexual harassment. While still a full-time law school professor (prior to joining the Department of Justice and the Court of Appeals), she was a member of Planned Parenthood and the National Organization for Women.[8][9]"
posted by internet fraud detective squad, station number 9 at 5:36 PM on February 13, 2016 [8 favorites]


Well, if we're betting on replacements, put me down for Jacqueline Nguyen. Recently (2012) confirmed by the Senate for the 9th Circuit Court, woman, Vietnamese-American, born 1965. I know nothing about her judicial philosophy, but the basic biographical sketch sounds good.

This is an asinine comment. If you admittedly no nothing about someone's judicial philosophy and are throwing names out there based purely on identity politics, you could easily end up with a bench full of Clarence Thomas's.

Picking the next member of SCOTUS is serious business, and the first priority for Obama should be judicial philosophy, and nothing else.
posted by modernnomad at 5:36 PM on February 13, 2016 [24 favorites]


They probably wouldn't go into formal recess. The House dissolves and is reformed every two years. The Senate just has a third of its members either be new or start new terms..

I'm pretty sure this is wrong as Congress is the joint body of the House and Senate and the 114th Congress ends on 1/3/2017. The thing is, the 115th Congress will start that same day, though there might be a window of a few minutes between the end of the 144th and the start of the 115th in which, assuming maximum obstruction, Obama can make a recess appointment since there would, literally, be no Congress in existence.
posted by MikeKD at 5:37 PM on February 13, 2016 [1 favorite]


Also, if you want to read a fellow Supreme Court Justice's view of Scalia's "consistency," check out the dissent in ATT v. Concepcion. It gets pretty zing-y.
posted by internet fraud detective squad, station number 9 at 5:37 PM on February 13, 2016 [4 favorites]


Ramsey Clark, the Attorney General for LBJ, is still alive. Not really a suggestion, just wow.

Am I remembering correctly that Clark was ultra-liberal?
posted by drezdn at 5:38 PM on February 13, 2016


Also I really can't tell if people are seriously about Michelle Obama but she seems really underqualified.
posted by internet fraud detective squad, station number 9 at 5:38 PM on February 13, 2016 [1 favorite]


What Obama should say: The American people did have a say in this choice, they elected me for four years. Not three years and one month.
posted by dances_with_sneetches at 5:39 PM on February 13, 2016 [28 favorites]


though there might be a window of a few minutes between the end of the 144th and the start of the 115th in which, assuming maximum obstruction, Obama can make a recess appointment since there would, literally, be no Congress in existence.

The SC has recently ruled that a few days, never mind minutes, does not allow the Prez to make recess appointments.
posted by ChurchHatesTucker at 5:42 PM on February 13, 2016 [1 favorite]


...it's hard not to think that this all must be unbearably abstract for anyone who would demote those issues to the level of pure politics.
posted by invitapriore at 6:13 PM on February 13



Someone once asked my opinion on gun control. All I could say was on either side, people are very emotionally invested in their position, and anything not laser aligned to their specific belief is immediately taken as a personal attack on the very core of what they believe is absolute morality and the only way forward for every human alive on this planet.

Unfortunately most successful politicians know this, and work day and night to inject the largest punch of personal emotional struggle into every debate, every issue, every letter in the mail asking for another donation.

I know that we are all human in this together, and the space between all of us is very, very small. Yet over and over religion, politicians, people who want to control massive groups of people will offer us cleverly engineered systems to ensure there is as much distance between us as possible. Look up to them, not to the person standing directly next to you, or just down the block. They aren’t you, they are different, their ideas a danger and unsafe. Remain inside the correct church or the correct web forums that offer safety in similar notions, just like yours.

It’s possible Scalia was an evil man, hell-bent on the destruction of people he deemed to be unworthy of the protection of the State he afforded to others. It’s possible he was a man with a family he loved and a world viewed shaped from outdated things different than what shaped ours.

He was reviled by many while he had the power to make decisions. But on the day of his death, immediately lighting fire to an effigy doesn’t seem in line with the respect we fight to extend to ourselves and others.

I don’t agree with his writings, and I religiously read the SCOTUS blog. I also don’t want to take anyone’s self-deterministic ability to hold fast to their positions or hold someone accountable. It just seems on the day he has died and is very much gone, Scalia as someone who was alive just a day ago is being viewed as much as an unbearable abstraction as you believe of those that disagree.
posted by four panels at 5:42 PM on February 13, 2016 [4 favorites]


More on Clean Power Plan...

NYMag.com: How Scalia's Death Will Change the Supreme Court, America, and the Planet

The immediate and easily foreseeable impact is staggering. Last week, the Supreme Court issued a stay delaying the implementation of Obama’s Clean Power Plan. The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama’s plan, which could jeopardize the Paris climate agreement and leave greenhouse gasses unchecked. Without Scalia on the Court, the odds of this drop to virtually zero. The challenge is set to be decided by a D.C. Circuit panel composed of a majority of Democratic appointees, which will almost certainly uphold the regulations. If the plan is upheld, it would require a majority of the Court to strike it down. With the Court now tied 4-4, such a ruling now seems nearly impossible.

posted by bluecore at 5:43 PM on February 13, 2016 [14 favorites]


It’s possible Scalia was an evil man, hell-bent on the destruction of people he deemed to be unworthy of the protection of the State he afforded to others. It’s possible he was a man with a family he loved and a world viewed shaped from outdated things different than what shaped ours.

It's possible he was both.
posted by ChurchHatesTucker at 5:44 PM on February 13, 2016 [42 favorites]


My guess is that Obama backroom deals a nominee with the Republicans, and as Obama knows what he's doing, screws over Marco Rubio.
posted by drezdn at 5:45 PM on February 13, 2016 [4 favorites]


He was reviled by many while he had the power to make decisions. But on the day of his death, immediately lighting fire to an effigy doesn’t seem in line with the respect we fight to extend to ourselves and others.

Meh. He wasn't the dude down the block. When you take it upon yourself to govern 200 million+ people you lose the right to have others sort of silently roll their eyes at your bad opinions, and then bring your wife a casserole when you die.
posted by internet fraud detective squad, station number 9 at 5:45 PM on February 13, 2016 [49 favorites]


Antonin Scalia is an interesting fellow. It is sad to hear of his passing at such a young age. I don't agree with him on most of his stated principles, but he's an interesting character largely because of an aspect of his character which he'd probably disavow if asked about it: an ability to bend his ideological or intellectual principles – chief among them Constitutional originalism – in cases where he felt it right to do so. The classic example of this, and probably his most famous case writing the opinion of the court, is DC v Heller, where he, an avowed originalist, took the extraordinary step of incorporating the second amendment – that is, making it binding on the states, through the power of the fourteenth amendment, though the Founders never imagined any of the amendments being binding on the states. In that opinion, he argued many contradictory things; he argued first that we must attempt to aim for the intents of the Founders in our judgments, and then he argued that handguns, which barely existed in any recognizable form at the time of the Constitution, were the closest analogue to what the Founders must have meant (not, that is, hunting rifles, which they clearly actually literally meant – as Scalia admitted himself in his opinion!) All of this ought to have been impossible to do convincingly, but Antonin Scalia largely got away with it because of his witty and blunt style, which tends to infuriate many liberals but which I actually tend to find rather endearing.

He also sometimes had some very useful and proper things to say, sometimes apparently against his whim but no less correct for that – as in US v Windsor, where, in dissenting, he predicted that the court was making same-sex marriage an inevitability – and sometimes in cases where the outcome in the specific case was unfortunate, but the general trend the decision set was entirely worthwhile and beneficial to the polity – as in Employment Division v Smith, where Scalia's majority opinion that Oregon could deny unemployment benefits for devout members of the Native American Church who had taken peyote, and in doing so insisted that there are very real limits to religious freedom, and gave a practical limit to them: when the state is not acting against religion, but legislating in the interest of some real need to the polity (say, extending health care benefits) then it is not violating religious freedom. I may not agree with his personal preferences in these cases, but he was correct in both of them – and they are far from the only such cases.

When all is considered, Antonin Scalia was an interesting man living in an interesting time; and his legacy is a strong and important one, even if it is divisive. I wonder what it will ultimately be. It may be that people will look back on him as a perfect example of the contradictions inherent whenever someone attempts to follow Constitutional originalism to its limits; I had professors in Political Science who were already using his cases that way. But I wouldn't be surprised if his begrudging predictions keep coming true. And whether those predictions lead to a nightmare world of anti-Constitutionalism, as he might have thought it would, or rather lead to a better nation more fully able to offer liberty and happiness to its citizens, his opinions will undoubtedly stand the test of time as important moments in the history of the court and the development of its doctrines.
posted by koeselitz at 5:46 PM on February 13, 2016 [14 favorites]


omg obama looks like he's suppressing a smirk.
posted by frecklefaerie at 5:47 PM on February 13, 2016 [1 favorite]


such a young age

He was 79.
posted by waitingtoderail at 5:48 PM on February 13, 2016 [21 favorites]


Conservative commentators most of the time "Obama needs to DO HIS JOB, and never go on vacation." Now, "He should sit this one out."
posted by drezdn at 5:48 PM on February 13, 2016 [17 favorites]


Maybe I'm old-fashioned, but I wish Obama had put on a necktie for this announcement. A president memorializing a justice should be a formal occasion.
posted by Pater Aletheias at 5:48 PM on February 13, 2016 [14 favorites]


Okay... we've got people now taking their seats in the Whitehouse press briefing room... and CBS is running through the last motions of the pre-debate discussions...

Earlier in the day Turkish forces struck at Kurdish militia in Syria and are demanding their withdrawl... while Russian Federation Prime Minister Dmitry Mededev declares that the world is slipping into a new Cold War with the change in posture with regards to NATO.

And now the President speaks...

Aaron Sorkin, any time that you want to stop writing the course of reality, I would appreciate it.
posted by PROD_TPSL at 5:48 PM on February 13, 2016 [9 favorites]


Antonin Scalia is an interesting fellow. It is sad to hear of his passing at such a young age.

I think any age is too young to die, of course, but he was turning 80 in a few weeks!
posted by Justinian at 5:49 PM on February 13, 2016 [3 favorites]


It's clear we need to replace Scalia with another Italian-American, since I'll feel more comfortable with a paisan on the Supreme bench, so maybe they can nominate that woman judge from Hot Bench.
posted by jonmc at 5:49 PM on February 13, 2016 [2 favorites]


verdict: NO FUCKS GIVEN
posted by tivalasvegas at 5:49 PM on February 13, 2016 [9 favorites]


This may be a dumb question but Obama is talking right now and he has no tie on. No big deal to me but he doesn't look polished and put together. Am I reading too much into this observation.

He also got right to it. He will nominate someone, duh!
posted by futz at 5:49 PM on February 13, 2016


He was reviled by many while he had the power to make decisions. But on the day of his death, immediately lighting fire to an effigy doesn’t seem in line with the respect we fight to extend to ourselves and others.

If the matter of one's death prompts such an outpouring of hate, then that's really on the person. This line of thought that we should stay quiet about those who have been so hurtful is patently ridiculous. Reap what you sow.
posted by Brandon Blatcher at 5:49 PM on February 13, 2016 [38 favorites]


I bet Harriet Miers is available.
posted by peeedro at 5:50 PM on February 13, 2016 [16 favorites]


Obama will nominate.
posted by CheeseDigestsAll at 5:50 PM on February 13, 2016 [2 favorites]


waitingtoderail: “He was 79.”

Exactly. He's like – what – the fourth youngest justice on the Supreme Court? 79 is pretty young for a Supreme Court Justice, and even for anybody else who seems to be relatively healthy and active, as he did.
posted by koeselitz at 5:50 PM on February 13, 2016


One good thing I can say about Scalia -- it was his dissent in Lawrence v. Texas that laid the groundwork for legalizing same-sex marriage by the Court.
posted by hippybear at 5:50 PM on February 13, 2016 [19 favorites]


Obama is talks right now and he has no tie on. No big deal to me but he doesn't look polished and put together.

Next on Fox News: TIEGATE!
posted by entropicamericana at 5:50 PM on February 13, 2016 [23 favorites]


[Let's reign in the meta-discussion about how people ought to react/ought to discuss -- we can certainly have a MeTa if necessary, but this is hard enough to moderate without also meta-discussing how other Mefites are reacting in thread.]
posted by Eyebrows McGee at 5:51 PM on February 13, 2016 [7 favorites]


This may be a dumb question but Obama is talks right now and he has no tie on. No big deal to me but he doesn't look polished and put together.

I think the impression to be given is one of hurry, with perhaps some undertones that a tie would indicate a decorum he doesn't feel.
posted by Mooski at 5:51 PM on February 13, 2016 [2 favorites]


verdict: NO FUCKS GIVEN

He is fulfilling his constitutional obligation. Like, I love "no fucks given" Obama as much as the next guy, but there SHOULD BE NOTHING REMARKABLE ABOUT THIS.
posted by duffell at 5:52 PM on February 13, 2016 [23 favorites]


Obama just delivered a short speech about Scalia's death and made it plain that he intends to nominate someone in good time and that the Senate should give them a fair vetting. But for the moment, he thoughts are with Scalia's family.
posted by Brandon Blatcher at 5:52 PM on February 13, 2016 [7 favorites]


Unfortunately doing the work of governance is a remarkable notion these days.
posted by tivalasvegas at 5:53 PM on February 13, 2016 [8 favorites]


thoughts are with Scalia's family.

his IMMIGRANT family. yes.
posted by quonsar II: smock fishpants and the temple of foon at 5:54 PM on February 13, 2016 [6 favorites]


I was thinking that tie-gate will indeed be a thing.

And I normally don't notice wardrobe, shoes, whatever.
posted by futz at 5:54 PM on February 13, 2016


So Jeff Sessions just argued on CNN that Obama's already appointed two justices, that three is too many. Umm, Reagan got 4 justices appointed.
posted by chris24 at 5:55 PM on February 13, 2016 [3 favorites]


The lack of tie is odd, for a solemn speech, but yeah, whatever.
posted by Brandon Blatcher at 5:55 PM on February 13, 2016 [3 favorites]


What Obama should say: The American people did have a say in this choice, they elected me for four years. Not three years and one month.

I don't think he needs to get Luther up on stage, but it might be a good time to say something like this:
A couple hours ago, the Senate Majority Leader said that 'The American people should have a voice in the selection of their next Supreme Court Justice. This vacancy should not be filled until we have a new President.' Well, I'd like to remind the Majority Leader that he also said of my election that 'the single most important thing we want to achieve is for President Obama to be a one-term president.' So I have this to say to Mr. McConnell: The American people do have a voice in their next Supreme Court Justice, and they made their voice clear when they elected me to a second term of office after you four years where you abdicated your responsibilities to our Constitution. And even then, nothing changed, and the past three years have been more of the same. So no, Majority Leader, I will not forgo my responsibilities under that Constitution, and you should be ashamed that you are telling the American people that you will forgo yours.
posted by zombieflanders at 5:56 PM on February 13, 2016 [33 favorites]


I hope President Obama nominates another capable woman, as he's done twice before.
posted by New Frontier at 5:57 PM on February 13, 2016 [13 favorites]


but Antonin Scalia largely got away with it because of his witty and blunt style, which tends to infuriate many liberals but which I actually tend to find rather endearing.

the sense I got from the Heller/McDonald arc is that he delighted in using the legal machinery the earlier liberal courts had (ab)used, to reach his own legal ends instead.

I wasn't "infuriated" in the least by Scalia. Things were much too serious for that sort of frivolous emotion.

Progressives are used to setbacks and successful push-backs from reactionary conservatives.

We win in the end though. Generally after the funerals of the old farts put in place to block progress.
posted by Heywood Mogroot III at 5:57 PM on February 13, 2016 [1 favorite]


Sandra Day O'Connor comes roaring out of retirement!
posted by Apocryphon at 5:58 PM on February 13, 2016 [4 favorites]


I hope President Obama nominates another capable woman, as he's done twice before.

We might actually achieve some semblance of gender parity. It can even be 5 boys and 4 girls so that the boys don't get all stroppy.
posted by Talez at 5:58 PM on February 13, 2016 [5 favorites]


It's a Saturday night over a holiday weekend (Presidents' Day weekend, no less), and he's giving a condolence speech while reminding the American Public that he intends to do his job. I can give him a pass on the tie.
posted by ThePinkSuperhero at 5:58 PM on February 13, 2016 [39 favorites]


anybody else who seems to be relatively healthy

what planet did you live on again?
posted by Heywood Mogroot III at 5:59 PM on February 13, 2016


All Obama needs to say is "As the sole member of government elected by ALL the American people..."

Biden shifts awkwardly
posted by ChurchHatesTucker at 5:59 PM on February 13, 2016 [8 favorites]


Free headline idea for anyone writing a retrospective on Scalia's judicial legacy:

"I've Seen Scalia and the Damage Done"
posted by Horace Rumpole at 6:06 PM on February 13, 2016 [14 favorites]


The GOP debate kicked off with a question on the Supreme Court nomination. They're going there.
posted by duffell at 6:07 PM on February 13, 2016


##### GOP DEBATE THREAD DECLARED ##### (in the other thread.)
posted by homunculus at 6:08 PM on February 13, 2016 [3 favorites]


And we're off to a flying start, Trump "delay, delay, delay".
posted by Talez at 6:08 PM on February 13, 2016


DAMN YOU PEOPLE MAKING ME FOLLOW TWO THREADS I AM GOING TO SPILL MY BOURBON
posted by Fleebnork at 6:10 PM on February 13, 2016 [16 favorites]


[Let's do the GOP debate over here, as soon as they finish talking about Scalia and are no longer on the topic of this thread.]
posted by Eyebrows McGee at 6:12 PM on February 13, 2016 [2 favorites]


My view: because I know you want it. GOP will stall till after the election. Dems win white house. New pres appoints Obama.
posted by Postroad at 6:12 PM on February 13, 2016 [1 favorite]


Obama basically has this issue 40-0 with him holding serve. Yeah he could still fuck this up but the idea of the Senate wanting to make this an election issue is next to zero. All Obama has to do is nominate a competent nominee and he can drive turnout immensely if the Republicans filibuster.

Female minority candidate especially a Latina candidate who gets treated like shit by Republican senators is like a solid 2-3 percentage points minimum. How much are Republicans willing to put the Senate or even the House at risk?
posted by vuron at 6:12 PM on February 13, 2016 [3 favorites]


Heywood Mogroot III: “what planet did you live on again?”

Phew. Okay, sure. 79 is old. You win.
posted by koeselitz at 6:12 PM on February 13, 2016


Fantasy scenario: Congress does a standoff with Obama. Obama makes a recess appointment. When recess term ends, President Sanders nominates Justice Obama.

As my husband is saying, "That's the America I want to believe in."
posted by Miko at 6:13 PM on February 13, 2016 [22 favorites]


US Male average life expectancy is, I believe, 76.
posted by spitbull at 6:14 PM on February 13, 2016 [1 favorite]


A notable start to Valentine's Day here.

1. We have secured the last bottle of the best gin in the city, and it is chilling in the freezer.
2. [REDACTED]
3. A reactionary voice in a position of high power has fallen silent
4. Even Metafilter can't find a way to make 3, above, a reason for despair for progressives.

January was not good. Things are looking up.
posted by Devonian at 6:16 PM on February 13, 2016 [2 favorites]


So Jeff Sessions just argued on CNN that Obama's already appointed two justices, that three is too many. Umm, Reagan got 4 justices appointed.

Three-fifths of four is 2.4, which rounds down to two, for which there is clear Constitutional precedent.

Wait, was that out loud?
posted by delfin at 6:16 PM on February 13, 2016 [23 favorites]


Ultimately, it depends on how Obama wants to handle this. Judging from his speech, he's down for a fight and is ready for one.
posted by Brandon Blatcher at 6:18 PM on February 13, 2016 [2 favorites]


This is the debate thread.
posted by homunculus at 6:20 PM on February 13, 2016


Judging from his speech, he's down for a fight and is ready for one.

Thus, no tie, and an appropriate sartorial statement. Hell yes.
posted by mwhybark at 6:23 PM on February 13, 2016 [4 favorites]


Sorry, at a loud busy bar with people I love so I'm missing a lot of the discourse, but...

Fuck the GOP obstructionism on this issue.
posted by glaucon at 6:24 PM on February 13, 2016




Post election he should just go T-shirt and jeans.
posted by Artw at 6:25 PM on February 13, 2016 [5 favorites]


Post election he should just go T-shirt and jeans.

It's cold out, perhaps a hoodie.
posted by Brandon Blatcher at 6:27 PM on February 13, 2016 [61 favorites]


It's cold out, perhaps a hoodie.

Oh gods no.

Talk is that Srinivasan wasn't interested. It'd be interesting to see if that's still true given the current situation.
posted by ChurchHatesTucker at 6:31 PM on February 13, 2016


I know that we are all human in this together, and the space between all of us is very, very small. Yet over and over religion, politicians, people who want to control massive groups of people will offer us cleverly engineered systems to ensure there is as much distance between us as possible. Look up to them, not to the person standing directly next to you, or just down the block. They aren’t you, they are different, their ideas a danger and unsafe. Remain inside the correct church or the correct web forums that offer safety in similar notions, just like yours.

As far as bad looks go, I think "politicians want to divide us by convincing us that bigotry is something other than a difference of opinion" beats out dancing on someone's grave by a considerable margin.
posted by invitapriore at 6:33 PM on February 13, 2016 [3 favorites]


I just broke my ipad screen faving that so hard BB.

I also just crtl-fd the thread and there have been no mentions of the Marfa Lights or the obvious Italicization of "Scaly" to "Scalia" despite the largely admirable X-Files reboot currently airing. Internet, I am dissapoint.
posted by mwhybark at 6:35 PM on February 13, 2016 [1 favorite]


GOP may abolish Supreme Court filibusters

Oh how times change.
posted by cjorgensen at 6:35 PM on February 13, 2016 [5 favorites]


I don’t agree with his writings

What an odd statement. He wasn't just some tool with an editorial column and a lot of bad ideas like, say, Tom Friedman or David Brooks. In many instances his "writings" had the force of law.
posted by great_radio at 6:39 PM on February 13, 2016 [16 favorites]


A bunch of the other Justices are pretty old; what would happen if three of them died (unlikely, but possible) before the next President takes office, leaving the Court without a quorum? Would Congress be forced to accept the President's nominations, or would they just leave the nation without a Supreme Court?
posted by Joe in Australia at 6:41 PM on February 13, 2016 [2 favorites]


Homosexual agenda item completed: outlive Scalia.
posted by bile and syntax at 6:42 PM on February 13, 2016 [101 favorites]


They don't have to do anything, but as a matter of politics there'd be tremendous pressure to at least confirm enough for a quorum.
posted by Holy Zarquon's Singing Fish at 6:44 PM on February 13, 2016 [1 favorite]


Would Congress be forced to accept the President's nominations, or would they just leave the nation without a Supreme Court?

There's nothing officially that can be done to the Senators who refuse to do their job. So that could really invigorate the left wing and bring them out in droves. That depends on someone leading the left wing.
posted by Brandon Blatcher at 6:45 PM on February 13, 2016


Homosexual agenda item completed: outlive Scalia.

"The constitutional amendment before us here is not the manifestation of a bare desire to harm homosexuals, ante, at 634, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws." (Romer, again, at 636.)

Congratulations, bile and syntax.

(Yes, a Supreme Court justice really did complain about the homosexual agenda in an actual published opinion.)
posted by praemunire at 6:46 PM on February 13, 2016 [14 favorites]


Having more than one vacancy would probably give some power to the GOP by allowing them to propose deals where candidate A gets approved only if candidate b gets approved.
posted by Mitheral at 6:48 PM on February 13, 2016 [2 favorites]


Realistically, it seems pretty likely that the next president gets three. Kennedy, Ginsburg and Breyer were all born in the '30s. Ginsburg is going to be pushing 90 by 2020.
posted by ArbitraryAndCapricious at 6:52 PM on February 13, 2016 [4 favorites]


Scalia went quail hunting yesterday. With Cheney?
posted by mareli at 6:58 PM on February 13, 2016 [1 favorite]


If you live in a red state like me, then you could do worse than to cite Vice President Dick Cheney when writing your senators about allowing an eventual Obama SCOTUS nominee to receive an up-or-down vote rather than filibuster or other parlimentary delaying tactics.
posted by the antecedent of that pronoun at 7:00 PM on February 13, 2016 [2 favorites]


Justice Michelle Alexander
posted by eustatic at 7:01 PM on February 13, 2016 [4 favorites]


Anita Hill is a law professor at Brandeis.
posted by rhizome at 7:07 PM on February 13, 2016 [32 favorites]


Realistically, it seems pretty likely that the next president gets three. Kennedy, Ginsburg and Breyer were all born in the '30s. Ginsburg is going to be pushing 90 by 2020.

Burger was 87, Blackmun was 90, Stevens is 95 and probably could still sit on the Court today. O'Connor is 84 and still actively sitting on Circuit Court panels. The next president could get 3 more, but they might only get 1 or 0. I don't see any of the current members retiring, especially cross party.
posted by T.D. Strange at 7:16 PM on February 13, 2016


My only comment about McConnell's stupid statement is: the American people do have an ongoing voice with regard to nominations to the Supreme Court, and it's called the U.S. Senate. The Senate, conveniently, is a standing body comprised of elected representatives from each state in the union. I think maybe Sen. McConnell has been so blindly obstructionist for so long that he's forgotten the essential nature of his job.
posted by LooseFilter at 7:18 PM on February 13, 2016 [29 favorites]


.
posted by Drinky Die at 7:18 PM on February 13, 2016


I wouldn't want to make Dr. Hill work alongside Clarence Thomas, she's already been through enough. She is, however, owed something equivalent in reparation for the outrage of his nomination. Ideally Thomas will see fit to retire, now that his 'brain' is dead, and she can be appointed in his place.
posted by Cold Lurkey at 7:19 PM on February 13, 2016 [8 favorites]


Anita Hill is a law professor at Brandeis.

Appealing, but (a) her specialty is elsewhere and (b) she would have to endure misogynist attacks like you'd never believe if she were to take it. Imagine what would be said about her being willing to take the job and work alongside the person she accused of sexual harassment. It would be said to undermine the credibility of her initial accusations and she would be painted as opportunistic, vengeful, or worse. It's a good example of how the structures of misogyny can work to deny people opportunities they would otherwise deserve.
posted by Miko at 7:20 PM on February 13, 2016 [16 favorites]


I think maybe Sen. McConnell has been so blindly obstructionist for so long that he's forgotten the essential nature of his job.

McConnell clearly as his own opinions on what his job is and he's doing his best to live up to that goal. At this point, he isn't the one to worry about. Find 10 Republican Senators who could flip on this issue and work on them. McConnell isn't one of them, so don't worry about him.
posted by Brandon Blatcher at 7:22 PM on February 13, 2016 [3 favorites]


Now that his crush is no longer going to be just a few feet away, I predict Thomas will break his long standing silence during oral arguments. His periodic voting opposite Scalia was just a smokescreen to keep Tony from getting too suspicious.
posted by chimaera at 7:24 PM on February 13, 2016


I also just crtl-fd the thread and there have been no mentions of the Marfa Lights or the obvious Italicization of "Scaly" to "Scalia" despite the largely admirable X-Files reboot currently airing. Internet, I am dissapoint.

If you are going to go there, you might as well get into the fact that Scalia was an out and out fascist via his father, not antisemites, but mussolini lovers.

that's what's so pathetic about the whole "but he loved the 4th amendment". He didn't care one bit about constitutional democracy or the law, but he was happy to use the law against itself and against democracy and in the service of power.
posted by ennui.bz at 7:26 PM on February 13, 2016 [13 favorites]


As others have said, it may be inappropriate to celebrate a death, but I won't mourn him. He was put into a position of power and he used that power to produce great harm and to increase human misery. So I won't mourn his passing.

May his replacement be better.
posted by sotonohito at 7:30 PM on February 13, 2016 [6 favorites]


though there might be a window of a few minutes between the end of the 144th and the start of the 115th in which, assuming maximum obstruction, Obama can make a recess appointment since there would, literally, be no Congress in existence.

The SC has recently ruled that a few days, never mind minutes, does not allow the Prez to make recess appointments.


Not in this case; that was whether or not an existing Congress was in recess. My point was that on 1/3/2017 there will (probably--depends on when exactly the 114th adjourns and the 115th starts) not be a Congress; therefore, one could not be in session, rendering non-nonsensical any question of it being or not being in recess.
posted by MikeKD at 7:34 PM on February 13, 2016 [5 favorites]


Question: if Obama did get on the SC, wouldn't he be required to recuse himself on cases involving legislation he signed or executive orders he enacted?
posted by azpenguin at 7:35 PM on February 13, 2016 [2 favorites]


I don't see how Grassley/senate could hold this up until Obamas' term is over as speculated in sundry blogs.
posted by clavdivs at 7:39 PM on February 13, 2016


I'm not super proud of it but I literally jumped for joy when I heard this. Feet left the ground.
posted by Skorgu at 7:40 PM on February 13, 2016 [6 favorites]


Room 641-A: “Do most Americans care about eminent domain at this point in time or is it a dog whistle for the militia types?”

Generally speaking, my sense is that more people across more demographics agree about eminent domain. It's at the very least an issue that's united people on issues that national politicians are apparently oblivious of. A good example: the Keystone XL project. A large proportion of Nebraskans – mostly conservative, mind – were violently opposed to the Keystone XL project. Why? Because the Keystone XL project was using eminent domain to seize a huge swath of farmland through the center of the state, taking farmers' land away from them for no more than "market price," which any of them would tell you right off is a lot less than it's worth to them.

So: I would say eminent domain is worth more to more people than anyone inside the beltway is aware. It sounds like that's finally becoming an issue in the mainstream. It's certainly not a militia dogwhistle thing.
posted by koeselitz at 7:45 PM on February 13, 2016 [9 favorites]


Scalia's full dissent, a riff-off between @swarthyvillain and @boring_as_heck.
posted by JHarris at 7:50 PM on February 13, 2016 [4 favorites]


Wish Albright would save her "special place in hell" schtick for people like this.
posted by Lyme Drop at 7:50 PM on February 13, 2016 [8 favorites]


Are there any critiques/analyses of Scalia, preferably not by those directly involved in justice or bipartisan politics? E.g. Richard Posner has famously criticized Scalia's jurisprudence, but he's a judge too. I'm wondering instead, what do historians, sociologists, philosophers say about his views, i.e. of him being a harmfully disingenuous justice? Surely there are some good articles or books that have been written on this.
posted by polymodus at 7:50 PM on February 13, 2016


This is the kind of event I think of when people say "Let's use science to triumph over death!"
posted by emjaybee at 7:59 PM on February 13, 2016 [2 favorites]


Pretty much everything I know about Scalia I learned at Volokh Conspiracy, including comments.
posted by rhizome at 7:59 PM on February 13, 2016 [1 favorite]


Why do you discount the analyses of jurists and lawyers? There are countless law review article analyzing Scalia and his views.

Well I mean there's one obvious reason—in justice, arguments tend to be adversarialized. In academia the approach is just different. That's why I mentioned the other disciplines. And that's not the only reason. And I've read of Posner already; I don't discount his views at all.

When people say that Scalia was harmfully disingenuous, that's a political implication. Politics is not confined to the justice system; in a democracy you're gonna have to listen to voices from all walks. Hope that answers "why" looking outside of law reviews, etc.
posted by polymodus at 7:59 PM on February 13, 2016


So, in terms of legality, are Supreme Court Justices allowed to have another job while serving as a Justice? Say... President of the United States?

Not that it would be remotely practical; not that it would ever get past Congress. But Aaron Sorkin wishes he could write plot twists like this. Mark Twain was already quoted up-thread, but the other one of his that comes to mind starts "Truth is stranger than fiction..."

I must admit that the idea of a Constitutional crisis brought about by some issue with an undecided presidential election forcing an evenly divided Supreme Court to attempt to try a case is both fascinating and terrifying. What happens then? Is that how the Great American Experiment ends?
posted by fragmede at 8:01 PM on February 13, 2016


wouldn't he be required to recuse himself on cases involving legislation he signed or executive orders he enacted?

that wouldn't be in the constitution, so I don't see how the GOP could raise the issue.

/s
posted by Heywood Mogroot III at 8:03 PM on February 13, 2016 [2 favorites]


The justices are the sole arbiters of what constitutes a conflict of interest in their work.
posted by Holy Zarquon's Singing Fish at 8:07 PM on February 13, 2016 [1 favorite]


When people say that Scalia was harmfully disingenuous, that's a political implication.

No, it's not. Scalia claimed to have strictly adhered to an Originalist jurisprudence. The argument is that he demonstrably didn't, and is thus being disingenuous.

Hope that answers "why" looking outside of law reviews, etc.

No, it doesn't. Or rather, it seems you're operating on a faulty assumption: in justice, arguments tend to be adversarialized. In academia the approach is just different.

Law review articles are from academia. There are numerous law review articles on what Originalism is, and whether Scalia in fact adhered to it as he claimed. I think you may be under the misimpression that they're just lawyers writing briefs or opinion pieces.
posted by Sangermaine at 8:10 PM on February 13, 2016 [13 favorites]


So, in terms of legality, are Supreme Court Justices allowed to have another job while serving as a Justice? Say... President of the United States?

I don't believe you are allowed to participate in two branches of government at the same time.
posted by roomthreeseventeen at 8:11 PM on February 13, 2016 [1 favorite]


I'll try it again with the blandest phrasing possible: "I'm glad that he's no longer on the bench."

Anyway, this election has always been about the court. The gridlock between the generally right wing legislative and (demographically trending towards) left wing executive branches means that the real power at the national level is in the courts. Ginsburg certainly won't last through another presidential term, and it's really just a surprise that Scalia kicked it first.

I'm hoping against common sense that people see the right's borderline illegal obstructionism for what it is, and that it costs some seats in November. I'm not holding my breath on that, but it's nice to dream.
posted by codacorolla at 8:12 PM on February 13, 2016 [1 favorite]


Sangermaine, I respectfully disagree with each of your explanations; I have easy counterarguments to each of your points above. Nevertheless, my original question was really about asking for good reading material from authors in philosophy, sociology, economics, critical theorists, even scientists, engineers, mathematicians, etc. Just not lawyers or judges. And not law professors, especially not those. My reasons are complex, and I hope you can accept where I stand at this time. That's all.
posted by polymodus at 8:13 PM on February 13, 2016 [1 favorite]


Do most Americans care about eminent domain at this point in time or is it a dog whistle for the militia types?

It is mostly a right wing issue for the overwhelming sanctity of private property. That is why it was only the liberal members of the Supreme Court who ruled in favor of eminent domain in Kelo vs New London.

You are never going to get your super-trains, light rail, wind farms and smart grid without eminent domain. Whether or not it is applied properly is a political decision specific to each case.
posted by JackFlash at 8:14 PM on February 13, 2016 [6 favorites]


Has the GOP's obstructionism cost them anything recently?

Yes. It cost them Boehner and a lot of legitimacy. The shutdown really reflected poorly on them*, and Boehner cut a deal to reopen the government and lost his job as a result. Then there was the unprecedented "not it" round when nobody wanted to replace him as Speaker, and Ryan wanted nothing less than the Speaker job but was basically forced into it. With congressional districts the way they are there are still more safe House seats than there should be, but there's a real chance that any further obstructionism will hand over the Senate and cause the majority in the House to weaken (and frankly they're on the verge of having a rump caucus anyway).

It's been pointed out above, but there are enough republican senators up for reelection in blue states that there's a really strong chance they'll allow a compromise confirmation simply because not doing so would cripple the party in November.

I'm personally really curious if Obama will intentionally nominate a lefty equivalent to Robert Bork, though, so his "compromise" equivalent to Anthony Kennedy will sail right through relatively unscathed.

* The people who blamed Obama for the shutdown are the people voting for Cruz in the primary. That coalition doesn't seem to be large enough to win in the general, but I do have to admit that there are (frankly, deranged) people who somehow didn't blame Cruz for that failed stunt, and instead think he's a hero for it.
posted by fedward at 8:15 PM on February 13, 2016 [5 favorites]


Anyone point out yet that Senate is currently in recess until Feb 22, which means Obama could put someone on the court right now? Given McConnell's comments, I see no reason to give them the benefit of the doubt.
posted by leotrotsky at 8:15 PM on February 13, 2016 [11 favorites]




I don't believe you are allowed to participate in two branches of government at the same time.

Not exactly. The Vice-President is also President of the Senate.
posted by JackFlash at 8:16 PM on February 13, 2016 [8 favorites]


Obama could put someone on the court right now

That would be awesome... I think he's headed to that end of the give-a-shit spectrum.
posted by pjenks at 8:19 PM on February 13, 2016 [3 favorites]


300+ fucking days with a vacancy on the supreme court.

If the Democrats win the White House and the Senate stays in Repubican control, I don't think it's impossible for the vacancy to become, effectively, permanent. Obstruction just doesn't hurt the Republicans.
posted by Thorzdad at 8:20 PM on February 13, 2016 [1 favorite]




There are a number of Republican Senate seats in play this election, some in contested districts. I don't think moderates are going to be very happy with obstructionism for the sake of conservative ideology.

It's not impossible that obstruction could cost them the Senate if they shoot down even nominees that are clearly qualified and acceptable.
posted by Sangermaine at 8:23 PM on February 13, 2016 [1 favorite]


If the Democrats win the White House and the Senate stays in Repubican control, I don't think it's impossible for the vacancy to become, effectively, permanent.

It'd be a weird mirror of FDR's threat to pack the Supreme Court in his favor.
posted by ChurchHatesTucker at 8:25 PM on February 13, 2016 [5 favorites]


The shutdown really reflected poorly on them

It reflected so poorly that the Republicans gained 13 house seats, 9(!) senate seats, and had what amounts to a wave election at the state level the following year.

Boehner cut a deal to reopen the government and lost his job as a result.

Yes, he lost his job because he stopped being obstructionist. Just like Eric Cantor got primaried because he was perceived as being too accommodating to Democrats and Obama. Republicans never get punished for being obstructionist assholes. They only ever get punished when they're not.
posted by dirigibleman at 8:27 PM on February 13, 2016 [21 favorites]


May his replacement be better.

Vonda Evans!
posted by kliuless at 8:32 PM on February 13, 2016


jesus, let it go.
posted by leotrotsky at 8:35 PM on February 13, 2016 [2 favorites]


fragmede: "Is that how the Great American Experiment ends?"

If you all are going to have a third civil war you want to hurry up with that wall? We don't want to play Laos/Cambodia to your Vietnam.
posted by Mitheral at 8:35 PM on February 13, 2016 [2 favorites]


McConnell has been so blindly obstructionist

this is what conservatism is supposed to be though, obstructionist.

~half this country isn't signed onto the progressive platform, alas.

the divisions that separate us are real

we should explore these divisions and not pretend they're creations of politicians or other nefarious forces.
posted by Heywood Mogroot III at 8:36 PM on February 13, 2016 [2 favorites]


[Polymodus, Sangermaine, Jesus DEFINITELY wants you to make like Elsa and Let It Go.]
posted by Eyebrows McGee at 8:36 PM on February 13, 2016 [28 favorites]


The House doesn't get penalized for being obstructionist because lol gerrymandering and a fuck ton of safe as hell seats which mean that your only effective challengers are from the douchebags that Club for Growth send up against you in the primary if you dare budge from the party's positions.

The Republicans in the Senate on the other hand really have to play this one carefully. They don't want to completely roll over but on the other hand if they put up too much of a fight there will be millions of dollars that make them pay for that intransigence in November.

Schumer is totally a dick and will use basically any excuse to hold this over the Senate Republicans
posted by vuron at 8:36 PM on February 13, 2016 [4 favorites]


After months of waking up to find out people I cared about had died, today was a welcome change.

Scalia had the all too rare ability to make, as a single person, dramatic and lasting changes to the world. Too often, he used that power to prevent others from enjoying the same rights and protections that he enjoyed. Instead of attempting to make the world a better place for everyone, he worked to achieve the opposite. His work is done, now, and I will not mourn him. Good fucking riddance, and I hope, at long last, the comments saying the GOP is actively going to prevent the president from doing his job, by refusing to do theirs, comes back to bite them in the ass.
posted by Ghidorah at 8:38 PM on February 13, 2016 [25 favorites]


It reflected so poorly that the Republicans gained 13 house seats, 9(!) senate seats, and had what amounts to a wave election at the state level the following year.

But that was a mid-term election. They generally have lower voter turnout which means smaller, more ideologically concentrated groups have amplified power. Also, the party in power often loses seats.

We're in a Presidential election now, the calculus is different. Republicans taking a hard conservative line risk alienating swing voters and even moderates in their own party in the general election. The entire Republican electorate doesn't have the appetite for ideological war that the Tea Party and the hard-liners do. Undecideds almost certainly don't.

Leaving a seat on the Court unfilled for 11+ months solely on ideological grounds is a tough sell to people who don't share your ideology. I think most people, however much they may disagree with some Court decisions, agree that the Court needs to be able to do its job and should have its positions filled if a qualified candidate is offered.
posted by Sangermaine at 8:40 PM on February 13, 2016 [7 favorites]


It reflected so poorly that the Republicans gained 13 house seats, 9(!) senate seats, and had what amounts to a wave election at the state level the following year.

That was by all accounts a bad Senate year for Democrats (and even without a SCOTUS mess this could be a bad Senate year for Republicans – it's the way the election cycles run).
The difference here is on the margins, but when those margins are capable of determining which party has the majority in the Senate, the margins are enough.

As for the House, the whole concept of "safe seats" is ridiculously out of control and will continue to be unless the Democrats figure out a 50 state ground game in time for the next redistricting (or, heaven help us all, the one ten years after that). Or unless there's suddenly a huge demographic shift. The Senate can easily tilt back and forth (and probably will) but it will take work to get the House to resemble something functional. But the House doesn't confirm appointees, only the Senate does that.
posted by fedward at 8:44 PM on February 13, 2016 [1 favorite]


So in theory Obama could put on someone as a recess appointment who is unabashedly liberal (ala Stephen Reinhardt) and basically force the Republicans to up or down an actual nominee because otherwise they'll have to deal with a 5-4 liberal court until they play ball.

And who is going to say that a recess appointment was unconstitutional in this manner?
posted by vuron at 8:45 PM on February 13, 2016 [2 favorites]


I also think Obama is in an ideal position for this. He, personally, has nothing to lose at this point. His final term is almost up, he can go all out fighting for what he wants. Politically, the election gives him a lot of leverage because the Republicans digging in can only hurt them among the general public. They can't even pretend their resistance is about real considerations like qualifications or experience.
posted by Sangermaine at 8:46 PM on February 13, 2016 [10 favorites]


The only non- disingenuous Originalist is the one who stands up and says that it should still be 1787. As none of them actually say that, QED. Asking whether someone is disingenuous about being an Originalist is somewhat besides the point. IMO.
posted by susiswimmer at 8:48 PM on February 13, 2016 [5 favorites]


SCOTUSblog putting out even more great content. Supreme Court vacancies in presidential election years
posted by roomthreeseventeen at 8:59 PM on February 13, 2016 [6 favorites]


Not caught up in the thread, but: one interesting choice would be Diane Humetewa, a native american. Especially in light of the details of the ongoing Dollar General case that was likely to further erode tribal sovereignty until today.
posted by sandswipe at 9:01 PM on February 13, 2016 [6 favorites]


I am imagining Scalia hanging with Alan Rickman at a really sweet David Bowie concert right now.
posted by Going To Maine at 9:04 PM on February 13, 2016 [1 favorite]


Everyone already expects the Republicans to block a liberal nominee at any time, period, and simply for that reason. The idea that such a move would somehow hurt them, instead of everyone just saying exactly what they're saying in this thread ("well, that's what I expected") doesn't seem to hold.
posted by Palindromedary at 9:05 PM on February 13, 2016 [4 favorites]


I was recently at a Labyrinth tribute showing and before the film the theater ran a bunch of old footage of super-glam Bowie on "Midnight Special," including a performance of "I Got You Babe" with Marianne Faithfull in a nun's habit that was so surreal I had to double-check to make sure I wasn't high. I like to imagine that Scalia is having to sit and watch it a few dozen times as part of his purgatory experience.
posted by praemunire at 9:14 PM on February 13, 2016 [5 favorites]


I am imagining Scalia hanging with Alan Rickman at a really sweet David Bowie concert right now.

If there's really a god, those 3 people are not in the same place.
posted by T.D. Strange at 9:14 PM on February 13, 2016 [38 favorites]


The idea that such a move would somehow hurt them

GOTV motivation. If the Senate Repubs faff around long enough, a lot of Democrat-leaning voters will get ticked off and actually make it to the polls in November. Which will probably mean that some Senate Republicans lose their seats. The question is how "liberal" does a nominee have to be for the Senate to stall - if they won't accept anyone more liberal than Scalia, then they're probably in trouble. If they can bring themselves to agree on someone like Kennedy, and fairly quickly, then SCOTUS will be less of a GOTV motivator for Dems come the election (except insofar as given the ages of the Justices the next President could easily wind up appointing somewhere between one and three more.)
posted by soundguy99 at 9:20 PM on February 13, 2016


Hunh. Dead, eh?

Hmm.

How 'bout that.
posted by CommonSense at 9:22 PM on February 13, 2016 [2 favorites]


Obama shouldn't compromise, why would he? A SCOTUS nomination is too important to effectively cede to the GOP just for the sake of confirming anyone.

He should nominate someone who fits his judicial philosophy, another Kagan or Sotomayor, and dare them to refuse to vote on it. This is the worst time to play triangulation, it's literally a once in a generation chance to flip the Court with no downside at all for Obama. He shouldn't settle for nominating the equivalent of Olympia Snowe or Joe Manchin to stab Democrats in the back for the next 35 years.

You only get so many chances at this, and that number is very, very small. Nominate a liberal, then use it throughout the election when they upend two centuries of norms in refusing to consider the nomination.
posted by T.D. Strange at 9:26 PM on February 13, 2016 [42 favorites]


If there's really a god, those 3 people are not in the same place.

It works if you assume Bowie's Heaven is Scalia's Hell.
posted by emjaybee at 9:29 PM on February 13, 2016 [87 favorites]


I'd actually prefer someone even more outspokenly liberal than Kagan or Sotomayor. Basically someone who is 100% on board with elimination of the death penalty and mandatory sentences. Or someone that is totally on board with rolling back corporate citizenship or a massive advocate of campaign finance reform.

Basically force the Republicans to fight publically over something that really really gets the liberals fired up.
posted by vuron at 9:34 PM on February 13, 2016 [12 favorites]


So, we're on season 5 then right?
posted by tivalasvegas at 9:43 PM on February 13, 2016 [2 favorites]


Mitheral: "If you all are going to have a third civil war "

Er, when was the second one?
posted by Chrysostom at 9:50 PM on February 13, 2016 [2 favorites]


From Twitter: "This would be an excellent day for Justice Clarence Thomas to continue his tradition of just doing whatever Justice Scalia does."

What a disgusting comment.

Same with the same old lazy yukking about how Thomas blindly followed Scalia (and the person(s) above who referred to Scalia as Thomas's "brain"). Thomas's jurisprudence is more radical than Scalia's, and he deserves full credit and scorn for his own work. He's a terrible jurist on his own steam, not just another man's puppet.
posted by sallybrown at 9:51 PM on February 13, 2016 [23 favorites]


Don't get all excited about Obama as a Justice. He's been pretty bad on privacy during his terms, and I don't imagine he would change much after becoming a Justice.
posted by Warren Terra at 9:52 PM on February 13, 2016 [11 favorites]


Given where Mitheral is posting from I assume it's a jocular reference to that unpleasantness in the 1770s (as a first Civil War, that is).
posted by tivalasvegas at 9:53 PM on February 13, 2016 [3 favorites]


I nominate Oprah.

Who better to sit in judgment of all mankind?
posted by chrchr at 10:01 PM on February 13, 2016 [3 favorites]


On the grounds of the Golden Rule (and the understanding that anyone is welcome to make the same rude remarks about me after I'm gone as they would have made while I was still kickin' it):

Scalia was a closed-minded quack who cared more about wowing people with clever turns of phrase than building dissent-proof arguments, and he will be considered a relic and an object lesson in the rotting power of prejudice in a scant couple decades. It's easy not to speak ill of the dead when he didn't spend almost thirty years trying to take away your basic rights, and when you didn't spend almost every June worrying what majority opinions he'd be writing that term. It is a huge credit to him personally that he was so well-loved as a friend and family member, because his views and willingness to use his power in support of those views was repellant. He must have been immensely charming.
posted by sallybrown at 10:04 PM on February 13, 2016 [39 favorites]


When my wife Kate clerked on the court, I spent a ton of time around the clerks and Scalia's clerks absolutely adored him. Unreservedly. (Chris Hayes)

One woman’s tweet from that Twittering: “I guess I could find a kind word to say about him during this time, but since I’m black, I’m just too stupid to come up w/ one.”
posted by LeLiLo at 10:12 PM on February 13, 2016 [17 favorites]


@JusticeBlaine tweets: Antonin #Scalia requested cremation in his will, but millions of women will meet tomorrow to discuss if that's really best for his body.
posted by bardophile at 10:27 PM on February 13, 2016 [103 favorites]


Hey, are there any openly gay qualified potential justices? Because that would make a wonderful replacement for him.
posted by el io at 10:29 PM on February 13, 2016 [15 favorites]


Earlier this year Scalia said “One of the reasons God has been good to us is that we have done him honor. … Unlike the other countries of the world that do not even invoke his name, we do him honor—in presidential addresses, in Thanksgiving proclamations and in many other ways."

This, at once, makes the nihilist atheist in me want to say "Fuck Scalia", and at the same time thank God for bringing him home.

I'm calling this my crisis of faith.

But really, any of the good this man might have done was vastly outweighed by the evil. I sincerely hope history remembers him as such.
posted by quin at 10:37 PM on February 13, 2016 [5 favorites]


el io: Vox is floating Pam Karlan, who is bi and whose partner is a woman, as qualified. But they also call her a "fuck you" choice, who'd only get nominated if Obama figures his pick has zero chance of getting confirmed. And, sadly, I think that any LGB nominee has no chance with Republicans.
posted by Banknote of the year at 10:37 PM on February 13, 2016 [3 favorites]


It is a huge credit to him personally that he was so well-loved as a friend and family member, because his views and willingness to use his power in support of those views was repellant. He must have been immensely charming.

I've been reading through the NYT piece and it documents that Justice Scalia was on good personal terms with some of the other liberal justices. A reader then comments they're surprised to find this out. And as for his work, the article credits his judicial philosophy for having had important positive influences for the system, e.g., how courts and people in law have conceptualized certain legal issues, etc. It's in the article; it is long and almost tedious in the amount of detail, but still I feel the journalists did a commendable effort, for Times standards.
posted by polymodus at 10:37 PM on February 13, 2016 [1 favorite]


While he posited himself as a strict originalist and against judicial activism, he basically just did whatever for whatever reason.

People like Scalia are the reason we need courts, not the kind of people to put in place as judges in courts.

Now that he is gone we can see that he lost a guaranteed government job with a good salary and great medical benefits.

With Scalia's passing we must ask who will we call upon to not really defend the constitution?

He died, despite being against the right to die.
posted by thebestusernameever at 10:48 PM on February 13, 2016 [3 favorites]


And who is going to say that a recess appointment was unconstitutional in this manner?

The Supreme Cour--

oh. Huh.
posted by BungaDunga at 10:50 PM on February 13, 2016 [7 favorites]


el io: The Washington Post put Paul M Smith on their short list. Among many other things, he argued Lawrence v. Texas.
posted by toxic at 10:52 PM on February 13, 2016 [2 favorites]


SCOTUSblog: Is a recess appointment to the Court an option?
posted by homunculus at 10:57 PM on February 13, 2016 [1 favorite]


So if the Repugs want to block a recess appointment, they have to have a rotating bunch of senators holding down the fort and not out on the campaign trail... Interesting.
posted by kaibutsu at 11:06 PM on February 13, 2016


not out on the campaign trail... Interesting.

There are 24 Republicans up for reelection this year, so they should have plenty. I'm pretty sure it's just a matter of one guy showing up and gavelling himself in and then out every day.
posted by BungaDunga at 11:14 PM on February 13, 2016 [1 favorite]


they have to have a rotating bunch of senators holding down the fort and not out on the campaign trail... Interesting.

Only 1/3 of the Senate is up for election each time around, so they should have no major problem getting a handful together to hold pro forma sessions.
posted by chimaera at 11:15 PM on February 13, 2016 [1 favorite]


The Scotus Blog regarding Senate recess doesn't address these next two weeks. This is a recess? Obama could make an appointment now? Tonight?! What could be lost ... he could go as progressive as he wanted.
posted by Surfurrus at 11:20 PM on February 13, 2016 [2 favorites]


That's a fun idea; throwing in someone super-liberal in the upcoming recess would provide a stronger hand for negotiating the permanent appointment.
posted by kaibutsu at 11:23 PM on February 13, 2016


79 is pretty young for a Supreme Court Justice, and even for anybody else who seems to be relatively healthy and active, as he did.

from a piece published last month in the Washington Post: "The average age at which justices retire... is 78.7. Right at this moment, three justices are over that mark: Ruth Bader Ginsburg, Antonin Scalia and Anthony Kennedy."
posted by LeLiLo at 11:26 PM on February 13, 2016 [2 favorites]


People are overhyping the RBG/Scalia friendship a bit I think. They were strongly opposed yet still got along?! Yes, sure, co-workers do that. This was proven long ago by Sam and Ralph!!
posted by xigxag at 11:27 PM on February 13, 2016 [8 favorites]


It looks like the Senate is not formally in recess at all. They're doing their usual pro-forma sessions to prevent recess appointments.
Pro Forma Sessions--Agreement: A unanimous-consent agreement was
reached providing that when the Senate completes its business on
Friday, February 12, 2016, it adjourn, to then convene for pro forma
sessions only, with no business being conducted on the following dates
and times, and that following each pro forma session, the Senate
adjourn until the next pro forma session: Monday, February 15, 2016, at
11:00 a.m., and Thursday, February 18, 2016, at 9:00 a.m.; and that
when the Senate adjourns on Thursday, February 18, 2016, it next
convene at 3:00 p.m., on Monday, February 22, 2016, unless the Senate
receives a message from the House of Representatives that it has
adopted S. Con. Res. 31; and that if the Senate receives such a
message, it stand adjourned until 3:00 p.m., on Monday, February 22,
2016.
posted by BungaDunga at 11:33 PM on February 13, 2016 [2 favorites]


More than just fun, kaibutsu ... imagine all the cases that could be heard, and even possible ACTIONS by a liberal-tweaked SCOTUS (If only for a brief time) ... It could really galvanize people to vote the Repugnants out.
posted by Surfurrus at 11:36 PM on February 13, 2016


ACTIONS by a liberal-tweaked SCOTUS would actually be more likely to galvanize the Repugnant supporters to vote and make their opponents more complacent... sorry.
posted by oneswellfoop at 11:44 PM on February 13, 2016 [3 favorites]


I suggest Justice Judy Sheindlin. Hey, plenty of people think she's already on the Supreme Court.
posted by SisterHavana at 1:35 AM on February 14, 2016 [5 favorites]


Some here are saying that the Republicans digging in can only hurt them. I'm not sure that's the case. I'd guess that SCOTUS appointments can be a unifying/energizing issue for conservatives as much as progressives.

Right now the frontrunners of the Republican primary appear to be Trump and Cruz. The majority of Republicans in my social circle are not excited about these men and potentially not enthused about supporting them in even the general election. But some kind of socialist far-left activist judge nominee (or one the right media bubble can make appear so) could be enough to get them to hold their nose and do it anyway.
posted by wildblueyonder at 1:49 AM on February 14, 2016 [4 favorites]


Agreed, wildblueyonder. If the Republicans in my circle are any indication, there is now nothing more important to them than making sure Obama or a Democrat doesn't appoint another justice.
posted by Joey Michaels at 2:09 AM on February 14, 2016 [1 favorite]


The only thing that'd be a bigger blow to Ruben "Tom the Dancing Bug" Bolling would be the death of James Caan, which would, ironically, rob him of the ability to use the Ghost of James Caan.
posted by BiggerJ at 3:08 AM on February 14, 2016 [2 favorites]


Nico Muhly:

U know what? Justice Scalia did say “argle-bargle” and for that I toast him.
posted by mediareport at 3:53 AM on February 14, 2016 [2 favorites]


.
posted by Ironmouth at 4:21 AM on February 14, 2016 [1 favorite]


Yeah, I think there are a lot of people out there for whom stopping legal abortion is basically the number one political priority. And they might be okay with blatant obstructionism over this even if they weren't over tea party fiscal stuff.

I actually am wondering whether getting people thinking more about Supreme Court appointments will affect Trump's success at all.
posted by gerstle at 4:36 AM on February 14, 2016


One must always speak good of the dead. Justice Scalia is dead. Good.
posted by flapjax at midnite at 5:10 AM on February 14, 2016 [9 favorites]


President Trump might nominate Judge Dredd.
posted by Grangousier at 5:16 AM on February 14, 2016 [13 favorites]


Flashman: "What kind of West Texas ranch private party was this? Is there any chance the circumstances were sordid?"

Please promise you are not getting all Mr. Hands up in here.

Also,

.
posted by Samizdata at 5:50 AM on February 14, 2016 [2 favorites]


Didn't like him, but he was a Supreme Court Justice, and that's worth a

.
posted by Jacqueline at 5:50 AM on February 14, 2016 [1 favorite]


As for the House, the whole concept of "safe seats" is ridiculously out of control and will continue to be unless the Democrats figure out a 50 state ground game in time for the next redistricting

Thankfully, Florida (and a couple of others, I believe) has recently gone to nonpartisan redistricting. It may or may not end up helping the Democratic party this year, but seems likely to at least make more districts competitive.
posted by wierdo at 5:55 AM on February 14, 2016 [2 favorites]


a day later, now that i've had time to think about it and quietly reflect, I'd say the funniest aspect of Scalia's death is that it means he's not alive any more
posted by Greg Nog at 6:30 AM on February 14, 2016 [20 favorites]


It's amazing to me that Republicans see no irony in praising Scalia for being an Originalist while also recommending that the seated, elected president set aside his Constitutional obligations because it's more important to give an unknown president, who won't take office for a year, those powers and responsibilities.
posted by carmicha at 6:33 AM on February 14, 2016 [57 favorites]


This death came just in time for the David Cross show I'm attending tonight.
posted by palindromic at 6:37 AM on February 14, 2016 [4 favorites]


It's amazing to me that Republicans see no irony in praising Scalia for being an Originalist while also recommending that the seated, elected president set aside his Constitutional obligations because it's more important to give an unknown president, who won't take office for a year, those powers and responsibilities.

Again, I get the frustration. I'd love to see 8 more Sotomayors, or even more liberal justices, and I wish that the President didn't have to deal with that nasty, conservative senate. But there is literally no irony here. The constitution says:
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,
So the Senate here is saying: "Here's our advice: wait until the election is over. And by the way, we won't consent to a nomination until then." The Senate is exercising its constitutional power, full stop, just as the President will when he nominates a justice.
posted by dis_integration at 6:47 AM on February 14, 2016 [3 favorites]


The idea that one branch of government will hold another branch hostage for almost a year is definitely not within the understanding of the constitution that I think many people would agree with. Advice and Consent I totally agree with but the idea that the Republicans can block a new judge ad infinitum is clearly not the intent of the founders.
posted by vuron at 6:53 AM on February 14, 2016 [21 favorites]


Question: If Obama nominates someone, which he says he will do, and the Senate uses all of its power to not confirm, as they say they will do, could that potentially really derail Cruz and Rubio's ability to campaign? That is, would they need to be present to make sure that the votes are there to block, and if so how much could the Executive Branch do to make their campaigns a trainwreck?

I hope the answer to the last question is "a whole crapton"
posted by mcstayinskool at 7:00 AM on February 14, 2016 [3 favorites]


President Trump might nominate Judge Dredd.

Judge Dredd feels more comfortable dispensing instant street justice and has always avoided the role of Chief Judge, though he has from time to time served on the Council of Five.
posted by Artw at 7:04 AM on February 14, 2016 [10 favorites]


I'll just say that I am so pleased he lived long enough to see gay marriage become a reality.
posted by kelborel at 2:27 PM on February 13 [216 favorites +] [!]


Maybe that's what killed him.
posted by Paul Slade at 7:05 AM on February 14, 2016 [1 favorite]


Yesterday I learned that Scalia was dead, and DMX is still alive, after he was found unconscious and unresponsive, with no pulse and no respiration (and then resuscitated by responding police).
posted by filthy light thief at 7:15 AM on February 14, 2016 [1 favorite]


Cruz would try to lead the filibuster and Rubio would be conspicuously absent for vote after vote.

I'm not sure but are the Senators still allowed to put holds on nominees or did that go away. Republicans still have quite a bit of leverage but they really aren't in a solid negotiating position to block a nominee the entire year. They seem to be angling for forcing a centrist pick which is probably as good a position as they can capitalize on. Expecting another originalist is basically ludicrous
posted by vuron at 7:17 AM on February 14, 2016


All the filibuster rules, including holds, still apply to Supreme Court nominees.
posted by Holy Zarquon's Singing Fish at 7:22 AM on February 14, 2016


Here's our advice: wait until the election is over. And by the way, we won't consent to a nomination until then.

I'm not a lawyer but to my mind that's not a great way of interpreting the Constitution. You can't just grab two words out context and drop them mad-lib-style into some other text.

Yeah, yeah, who sounds like an originalist now?
posted by great_radio at 7:22 AM on February 14, 2016 [6 favorites]


I'm not sure but are the Senators still allowed to put holds on nominees or did that go away. Republicans still have quite a bit of leverage but they really aren't in a solid negotiating position to block a nominee the entire year. They seem to be angling for forcing a centrist pick which is probably as good a position as they can capitalize on. Expecting another originalist is basically ludicrous

Any nominee would have to get through the Senate's Judiciary Committee, chaired by Grassley (R-Iowa). The question is, do the rules of that Committee make it possible for Grassley to delay for a year? Probably.
posted by dis_integration at 7:23 AM on February 14, 2016


another originalist

Though this is the moniker he'd want to be given, Scalia was more assholist than originalist. He regularly had opinions that boiled down to "Go Fuck Yourself, opinion that isn't mine"

To put in D&D terms, Thomas: Lawful Evil. Scalia: Chaotic Evil.
posted by mcstayinskool at 7:23 AM on February 14, 2016 [10 favorites]


Is Originalism basically just the more respectable version of Moon Law? Do they have those little fake constitution pamphlets?
posted by Artw at 7:26 AM on February 14, 2016 [3 favorites]




Adding his own words to his bonfire -- Scalia's Full Dissent on Same-Sex Marriage Ruling "I write separately to call attention to this Court’s threat to American democracy." ... "Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best." (9 justices changing laws instead of the will of the people, unlike all those other decisions he made.)

I'm failing to find a tally of times his dissents have been used to support the very causes he attacks, but here's one on the Affordable Care Act.
posted by filthy light thief at 7:43 AM on February 14, 2016


This tweet basically says it all for me: "I need a jurisdiction system where a dude doesn't have to die to make me feel safer/better."
posted by XtinaS at 7:48 AM on February 14, 2016 [6 favorites]


Although he was the kind of person who only felt safer if dudes were getting killed regularly. State execution as a sort of human sacrifice to a vengeful God.
posted by Grangousier at 7:52 AM on February 14, 2016 [1 favorite]




This is a day of independence for all the munchkins and their dependents
posted by caddis at 7:54 AM on February 14, 2016 [1 favorite]


Justice Scalia's legacy: blistering zingers and a more partisan America

Bush v Gore is an extreme example but, despite Scalia’s self-presentation as America’s Last Honest Judge, Scalia had a way of ignoring his self-described legal principles if they conflicted with cherished policy goals. To take one particularly critical example, the joint dissent to the 2012 US supreme court opinion largely upholding the Affordable Care Act co-authored by Scalia was so flagrantly inconsistent with Scalia’s previous jurisprudence that Justice Ruth Bader Ginsburg was able to quote his previous opinions at length in her concurrence.
posted by T.D. Strange at 7:54 AM on February 14, 2016 [22 favorites]


If I were Obama (what a phrase *that* is), and knowing that it's only going to be obstructed, I'd nominate someone as centrist, white bread, and straight-down-the-line as I could find. Someone that the right could expect absolutely no better than from a progressive president. Then, let the delaying and denying begin. It would not only show up the obstructionism as being ridiculous, there would also be pressure from within their own party to accept this guy who's really not all that bad. Obama would be the reasonable one, offering a compromise candidate from the start, and let's just get on with the business of government.

Then that first guy is rejected, so offer someone more to the left. And let that one get rejected. And then go to the left again. Each time, there's more remorse that they didn't take the last one, and more pressure to accept this one, because it's only getting worse. More and more pressure each time. Slowly turn up the heat.

Sure, there's always going to be one element that is going to deny no matter what. But there's a fair chunk of the party that's going to pay the price for that blatant obstructionism. And I would leverage that to maximum advantage, both for the election year, and for long-term damage.

But what do I know?
posted by Capt. Renault at 8:16 AM on February 14, 2016 [18 favorites]


SCOTUSblog argues: Ninth Circuit Judge Paul Watford is the most likely nominee to replace Antonin Scalia

Watford was confirmed by the Senate in 2012 by a 61-34 vote, which is a filibuster proof majority. Nine Republicans voted in favor. That gives the Administration considerable ammunition to argue publicly that Republicans, by refusing to process the nomination, are blocking someone who is recognized to be qualified.

Logistically, the fact that Watford was vetted so recently also makes it practical for the President to nominate him in relatively short order. There is some imperative to move quickly, because each passing week strengthens the intuitive appeal of the Republican argument that it is too close to the election to confirm the nominee.

posted by bluecore at 8:17 AM on February 14, 2016 [7 favorites]




Also sky blue, pope catholic, bears shit in woods.
posted by Artw at 8:28 AM on February 14, 2016 [8 favorites]


Ideally if it's Ted Cruz doing the filibustering that will give the mainstream Republicans who hate him the extra push they need to make a deal with Obama.
posted by Holy Zarquon's Singing Fish at 8:29 AM on February 14, 2016


Ted Cruz's voice is annoying enough that someone, party affiliation be damned, will stop him from filibustering.
posted by bink at 8:32 AM on February 14, 2016 [9 favorites]


Ideally if it's Ted Cruz doing the filibustering that will give the mainstream Republicans who hate him the extra push they need to make a deal with Obama.

Can he campaign from the senate floor or are there rules against that? Because I don't see how you can read Dr. Seuss and run for president at the same time.
posted by cjorgensen at 8:32 AM on February 14, 2016 [1 favorite]


Do the current filibuster rules require the filibusteror to be present at all?
posted by Etrigan at 8:33 AM on February 14, 2016 [1 favorite]


Me: (talking about an historically jerky person we both know that just died): eh, I feel bad for him. He was a jerk but I'm sure deep down he knew that he made mistakes.

My dad: don't waste your time. Plenty of actually good people die every day. Save your sympathy for them. Fuck that guy.
posted by ian1977 at 8:33 AM on February 14, 2016 [53 favorites]


Filibusters don't require you to be there anymore. Mostly you just threaten to filibuster. Also, can't McConnell just not schedule hearings or votes?
posted by dirigibleman at 8:37 AM on February 14, 2016 [1 favorite]


From my way way distant view, it seems like the way for the Democrats to win this is make the nomination fight, and maybe even the presidential election as a whole, a referendum on choice and marriage equality. Nominate someone middle-of-the-road and unobjectionable who also supports choice and marriage equality — which are the majority positions now — and then let the Republicans spend the next eleven months continually reminding everyone that above all else they're the party that's against choice and marriage equality.

Obama could even call back to one of his old lines by responding to Cruz's threats to filibuster with "Please proceed, Senator."
posted by You Can't Tip a Buick at 8:41 AM on February 14, 2016 [2 favorites]


Ted Cruz Plans to Filibuster Any Supreme Court Nominee Made by President Obama

"Fuck those '80s democrats from stopping that segregation loving facist from being one of the highest jurists in the land."
posted by Talez at 8:45 AM on February 14, 2016


The part of me that watches politics like I watch sports regrets the House doesn't have a role here. Making Paul Ryan deal with this before the election would be hilarious.
posted by Drinky Die at 8:51 AM on February 14, 2016 [3 favorites]


Artw: "Also sky blue, pope catholic, bears shit in woods."

You sure about that? I always learned it was bears that were Catholic and popes shat in woodland areas.
posted by Samizdata at 8:53 AM on February 14, 2016 [3 favorites]


Canadian-born Cruz wants more strict Constitutionalists to serve... but wouldn't they be the most likely to hew to a narrow interpretation of "natural-born citizen?"
posted by carmicha at 8:55 AM on February 14, 2016 [2 favorites]


U.S. Senator Elizabeth Warren:
"The sudden death of Justice Scalia creates an immediate vacancy on the most important court in the United States.

Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes.

Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can't find a clause that says "...except when there's a year left in the term of a Democratic President."

Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk."

posted by zarq at 8:57 AM on February 14, 2016 [80 favorites]


Speaking of Cruz, have you guys seen his latest campaign ad? He's going for the sympathy vote.
posted by Johnny Wallflower at 8:58 AM on February 14, 2016


When it comes down to it, if the Senate wanted to fuck with Obama and be obstructionist nitwits they had every opportunity to just do it. But no, they had to be mouthy about it. They had to let their base know and boast that they were going to be a bunch of obstructionist shits out of sheer spite.

But nobody to the right of Warren really gives a fuck anymore so Senate Rs can be as recalcitrant as the fucking want.
posted by Talez at 9:00 AM on February 14, 2016 [2 favorites]


metafilter: just grab two words out context and drop them mad-lib-style into some other text.
posted by the antecedent of that pronoun at 9:02 AM on February 14, 2016 [5 favorites]


I think Republicans are hoping nobody notices that there is a difference between "Senate can confirm/reject any specific nomination they like; it's their right," and "don't even make a nomination, Obama, we are telling you right now we won't approve ANYONE until you're gone." I'm pretty sure the former was the intent.
posted by instamatic at 9:04 AM on February 14, 2016 [4 favorites]


we just have to determine what 18th Century Deists meant by "by and by" now, excellent

eh, "by and with", vever mind
posted by thelonius at 9:05 AM on February 14, 2016


So,the GOP is basically saying that only the first three years of a president's term are when he can take constitutionally mandated action?
posted by azpenguin at 9:06 AM on February 14, 2016 [5 favorites]


So,the GOP is basically saying that only the first three years of a president's term are when he can take constitutionally mandated action?

It's the black president clause. He only gets executive power for 3/5 of a term.
posted by Talez at 9:07 AM on February 14, 2016 [43 favorites]


Somehow I'm on Paul Ryan's missive list. This morning's announcement:

"On Tuesday, the Supreme Court, in one of the last majority rulings for the great Justice Antonin Scalia, blocked President Obama's Clean Power Plant plan. It will remain blocked until the Supreme Court decides its fate."

But it's them durn libruls who can't show respect or let a crisis go to waste.
posted by Evilspork at 9:10 AM on February 14, 2016



It's the black president clause. He only gets executive power for 3/5 of a term.


Bravo, bravo. Well played.
posted by azpenguin at 9:10 AM on February 14, 2016 [1 favorite]


U.S. Senator Elizabeth Warren...

Oh come on. All this about "abandoning duties" and "do your job" is just bluster and posturing. The president can nominate someone. The Senate needs to confirm. There is no time limit for either thing, and there is no minimum number of justices. We will have 8 justices until either a Republican president makes a nomination, the Senate changes to be more liberal-minded, or it gets used as a quid-pro-quo "we'll approve your nomination, in exchange for not blocking [other thing]" And $other-thing would have to be huge.

That's the way the system is designed. We know already the GOP is not responsive to rhetorical shaming. I know these statements are not for them, they're for the benefit of influencing future voters, but still.
posted by ctmf at 9:15 AM on February 14, 2016 [4 favorites]


And then there's this alternative universe viewpoint from a a Facebook post: Consider this. Obama plans on waiting until he Congress is in recess to appoint a far left leaning judge. This is a smart, but sinister move as it now gives Obama control on the Supreme Court. It also gives him more power in Executive Action. He also now has an ally which will not hear any cases the Conservatives bring against him, or rule against any opposition bringing a case against him. He also has a brilliant opportunity to seek a third term through the Supreme Court. They can simply change the law to the Constitution. We have seen a turning point. The Marxists now have a chance to seize power and rule for a very long time.
posted by bardophile at 9:19 AM on February 14, 2016


People have been comparing Scalia’s death to that of Reagan or Thatcher.

To me, there’s a major difference in that Scalia was in power till the day he died.
posted by Fongotskilernie at 9:19 AM on February 14, 2016 [10 favorites]


ctmf, the difference is that the system as it's worked for the last 200 years has never involved categorically refusing to consider Supreme Court nominations for a full year, election or not. The time from nomination to vote has never even lasted four months. What the Senate GOP is saying they'll do would be entirely without precedent.
posted by Holy Zarquon's Singing Fish at 9:21 AM on February 14, 2016 [21 favorites]


Yes it creates a very important job opening. i think if he'd been retired for years I'd see the glee over his death a little differently. I think there would be similar celebrating if he'd just retired, but everyone knew he never would.
posted by zutalors! at 9:22 AM on February 14, 2016 [1 favorite]


I don't think so. I think the difference now is we're so non-cooperative the exchange deal can't be made. The GOP can't cave without extracting something so big the Dems just can't agree to it.
posted by ctmf at 9:25 AM on February 14, 2016


I'm hearing buzz on Iowa Twitter about Jane Kelly, a Federal Appeals Court Judge. She spent most of her career as a public defender, but was also the victim of a horrific violent attack and is going to be hard to smear as being soft on crime, and she's a law school classmate of Obama's. I don't know if there would be more pressure on Grassley to support someone local, but there might be.
posted by ArbitraryAndCapricious at 9:27 AM on February 14, 2016 [2 favorites]


What the Senate GOP is saying they'll do would be entirely without precedent.

Of course it's without precedent. But that's because the Republic is in Dire and Desperate Jeopardy and The Barbarians Are At the Nonexistent Southern Border Gate and Probably Coming Through Canada Too and Already Infiltrating Our Honest God-Fearing Decent Christian Communities and the Kenyan Usurper From Kenyatown, Kenya Seeks to Overthrow All Law and Morals and Historical White-Christians-Control-Everything Precedent and Seize All Guns and Bibles and Printed Constitutions and Declare the Year to Be 1 and Himself to be Emperor of the New American Caliphate While His Brownshirts Murder Us All In Our Beds While Married Homosexuals Copulate With Glee.
posted by delfin at 9:27 AM on February 14, 2016 [19 favorites]


ctmf, the difference is that the system as it's worked for the last 200 years has never involved categorically refusing to consider Supreme Court nominations for a full year, election or not.

I think that says more about the fact that there weren't any nominations that came up at times like 1859.
posted by chimaera at 9:29 AM on February 14, 2016


Yeah, but last night they said it was long-standing tradition and the more often they have to change stories the easier it is for people who don't follow this news extra-closely to see they're full of shit.
posted by Holy Zarquon's Singing Fish at 9:29 AM on February 14, 2016 [1 favorite]


They're totally full of shit. But so is their base, who don't even remember that the ACA was proposed by the Republicans in 94. Of course they'll believe it's a tradition, because if Fox News as warped their current factual knowledge, it's virtually eradicated all of history itself from their minds except WW2, 9/11, and Reagan personally taking a jackhammer to the Berlin wall.
posted by chimaera at 9:36 AM on February 14, 2016 [3 favorites]


The Republicans have nothing to lose by stalling, canceling hearings ... generally blockading any nominee. Their constituents will cheer their "bold defense" ... precedent be damned.
posted by Surfurrus at 9:37 AM on February 14, 2016


I guess what I'm saying is, from a realistic point of view: if getting a nominee confirmed is so important, what are you willing to give up for it? Obamacare? Women's Health? No, right? 8 Justices.
posted by ctmf at 9:38 AM on February 14, 2016




AND, I think Obama has nothing to lose by grabbing the seat for a temporary appointee. There are at least five critically important cases hanging in limbo. An eight-judge verdict on any of them would not turn out well. The controversy ("executive overreach" ... etc.) would put extreme pressure on the election ... both parties would have to step up their game. I don't think fear of the fear mongerers (or those fragile middle-road voters) should dictate caution now. They are entirely unreliable, unpredictable, and any pussy footing around them is only going to confirm their belief that the Dems are covertly sinister and manipulative.

I am sure worse schemes are being cooked up by the GOP. The Dems are in a no-win, defense position right now ... especially for the election. They need to get in the game or go home.
posted by Surfurrus at 9:51 AM on February 14, 2016


I would really like to get a 9th Justice in there before Obama's term is up, because I'm increasingly worried that the Republicans are going to win the presidential election, and the Supreme Court is one of the many ways that it would be completely cataclysmic for the country's future.
posted by ArbitraryAndCapricious at 9:53 AM on February 14, 2016 [1 favorite]


The controversy ("executive overreach" ... etc.) would put extreme pressure on the election

The words "executive overreach" have practically been a daily prayer from the Republican party. They would still be chanting this even if Obama literally took no further action on anything for the remainder of his term. An eight judge verdict is not anything they should say this about, considering that it comes from an entirely different branch of government, but I don't see that as a practical limitation:

"President Obama is yet again demonstrating an unprecedented abuse of Executive powers by allowing this appointment to sit vacant now that a Supreme Court Justice who didn't represent his socialist ideals is no longer standing in his way"

or

"President Obama is yet again demonstrating an unprecedented abuse of Executive powers by trying to push through a Supreme Court Justice who favors his socialist agenda near the end of his term"

It's an easy game to play - the only way it could be any easier would be if they had a program that scanned news headlines for anything to do with Obama or the Democratic Party and filled in the blanks for them.
posted by MysticMCJ at 10:04 AM on February 14, 2016 [4 favorites]


There is no current realistic scenario where the Republicans win the White House. Granted, it's a long way to November, but there's no current polling to support that.
posted by roomthreeseventeen at 10:04 AM on February 14, 2016 [1 favorite]


> The Marxists now have a chance to seize power and rule for a very long time.
posted by bardophile at 9:19 AM on February 14 [+] [!]


in my dreams, maybe.
posted by You Can't Tip a Buick at 10:05 AM on February 14, 2016 [5 favorites]


Thank you for that link, Melismata ... that is a very reasoned perspective. (and it does blunt the intensity behind my kamikaze scenario a bit ... for the moment, anyway.). I suspect Obama (long game player that he is) is seeing the advantages of the eight judge court, too.
posted by Surfurrus at 10:07 AM on February 14, 2016 [1 favorite]


Now that I think about it, I'd be surprised if someone hasn't already written this. It would be simple enough, as you wouldn't have to worry about a "fact check" option.

There is no current realistic scenario where the Republicans win the White House.

Nobody knows what is going to happen. Nothing is set in stone. Every poll and prediction a few months back put us somewhere completely different than we are now - I see no reason to give them much weight. The only thing that the polls do right now is generate references for clickbait and pundits.
posted by MysticMCJ at 10:08 AM on February 14, 2016 [2 favorites]


here's no current polling to support that.

you have greater faith in this electorate than I do.

H L Mencken, to Upton Sinclair after the war (WW I):

http://i.imgur.com/idWELss.png
posted by Heywood Mogroot III at 10:12 AM on February 14, 2016 [3 favorites]



There is no current realistic scenario where the Republicans win the White House.

... said every Democrat before every election lost ...
posted by Surfurrus at 10:13 AM on February 14, 2016 [5 favorites]


There is no current realistic scenario where the Republicans win the White House. Granted, it's a long way to November, but there's no current polling to support that.

I would not suggest anybody rely on this data, it's too early and not enough polls, but both Cruz and Rubio are beating Clinton in the RCP head to head averages. So, again, don't rely on this data but what data there is absolutely shows Republicans at least in striking distance in the head to head scenarios.
posted by Drinky Die at 10:14 AM on February 14, 2016 [1 favorite]


Delaying the appointment till after the election has the obvious right wing benefit of stacking the court, but has the tacked on (and I would argue more important) benefit of riling the base. Controversy over Obama managing an appointment won't last until the polls, especially since it's a well they've drawn from so many times. The republican electorate is already at the delusional threshold where they see Obama as a tyrant, so this added controversy doesn't do a whole lot.

However, dragging out the appointment presents an immediate threat that's much more likely to spur turnout. Especially if a detested fringe candidate like Trump gets the nomination. Disheartened conservatives who wouldn't hold their nose for Trump are far more likely to vote for any R candidate if the fate of the court is at stake - even moderates.
posted by codacorolla at 10:14 AM on February 14, 2016 [1 favorite]


It will never happen unless Obama is truly committed to going DGAF in his final year, but he should nominate Nina Pillard like wo.
posted by Navelgazer at 10:15 AM on February 14, 2016


I guess what I'm saying is, from a realistic point of view: if getting a nominee confirmed is so important, what are you willing to give up for it? Obamacare? Women's Health? No, right? 8 Justices.

Even if you don't get the Justice, you can still make the election about one party who wants to follow the constitution and the other who only wants to follow it when it's aligned to their political view. One party who goes to Washington to work and the other that goes to play politics.

Considering how many primary voters are voicing their frustration right now, it's not a bad idea to paint the Republicans as a bunch of petulant children and the problem in Washington right now. It's one thing to block a nominee, a whole other thing to think the President should take the last year of his job off.

That, and it doesn't exactly make the Democrats look like a legitimate governing party to lay down on the floor and sob every time the Republicans make a power move.
posted by scrittore at 10:18 AM on February 14, 2016 [13 favorites]


A few hours after his death, we were talking with someone else who might be assumed to be an opponent of Justice Scalia’s opinions: the long-time head of the ACLU, New York Law School Professor Nadine Strossen. She was a fan and a friend of the conservative jurist.

“While Justice Scalia provoked the ire of many liberals, he wrote important opinions upholding individual rights, including free speech and privacy, which liberals should celebrate,” said Ms. Strossen. “Moreover, despite his vaunted ‘originalism,’ he expansively construed Bill of Rights provisions in the context of new technologies and new dangers. For example, he championed the right to be free from newfangled, high-tech surveillance methods, and in the Court’s first post-911 constitutional ruling, his opinion (which was joined only by the liberal Justice Stevens) was the one that most strongly supported the rights of an accused terrorist.”

Ms. Strossen, who holds an endowed chair in Constitutional law named after another Supreme Court Justice, John Marshal Harlan II, added, “I do have full-bore admiration for him, not only because of his pro-civil libertarian opinions—not to mention his terrifically vivid, witty, memorable writing—but also because of his personal warmth, ebullience, and generosity.”

posted by roomthreeseventeen at 10:25 AM on February 14, 2016 [6 favorites]


Soooo ... voters are going to suddenly become ashamed of the Republicans' behavior in Congress? ... like they did about torture and WMDs and big bank bail outs and guys who throw snowballs?
posted by Surfurrus at 10:30 AM on February 14, 2016 [2 favorites]


Oh come on. All this about "abandoning duties" and "do your job" is just bluster and posturing.

The blustering is coming from the GOP. The nomination of a Supreme Court justice has never taken more than 125 days. There's ample precedent of SCOTUS appointments during election years.

That's the way the system is designed.

Not really. It's designed to get a nominee vetted, approved and in place pretty quickly. It's not designed to account for obstructionists who refuse to do the job they were elected to do: governing. And let's be honest: obstructionism and a refusal to govern this country on the scale the GOP has been engaged in over the last 20-30 years is unprecedented. So is delaying a SCOTUS nominee until an election happens, because maybe their team will win and they'll get the outcome they want.

We know already the GOP is not responsive to rhetorical shaming. I know these statements are not for them, they're for the benefit of influencing future voters, but still.

What "still"? It's the only thing that matters. An entire party wants to prevent the US government from functioning. Voters need to know exactly what they're trying to do.
posted by zarq at 10:32 AM on February 14, 2016 [27 favorites]


From an hour ago: Reich: "My mole in the White House tells me Obama will nominate 46-year-old Judge Sri Srinivasan". Maybe the mole thing is a joke, but I couldn't tell if it was or not.
posted by cashman at 10:34 AM on February 14, 2016


It won't be Sri. Sri's a super-centrist with originalist leanings who's only "advantage" is being the safest choice in a circumstance where there's no damn reason for a "safe" choice.

i hope
posted by Navelgazer at 10:37 AM on February 14, 2016 [3 favorites]


The nomination of a Supreme Court justice has never taken more than 125 days.

Look, I'm on your side, but that's unpersuasive. Just because it's never taken more than 125 days to get the deal done doesn't mean it can't. It takes two to tango - what are we offering? The GOP will get slaughtered by their base if they don't get something for this. You're asking for the impossible.
posted by ctmf at 10:38 AM on February 14, 2016


there is no minimum number of justices

The court can't render decisions with fewer than six justices but I don't know whether that limit is statutory or self-imposed.
posted by ROU_Xenophobe at 10:46 AM on February 14, 2016


It won't be Sri. Sri's a super-centrist with originalist leanings who's only "advantage" is being the safest choice in a circumstance where there's no damn reason for a "safe" choice.

People up-thread have made an extremely good case that there are plenty of reasons for a "safe choice". Let the Rs block a patently qualified, centrist candidate whom they recently unanimously confirmed to the DC Circuit. Let that shake out in the election. Let the Court sit 4-4 if need be. Be the bigger man.
posted by saturday_morning at 10:49 AM on February 14, 2016


Hillary is open to nominating Obama, I wonder if Obama is open to nominating Hillary...that would be entertaining (not sure she's on his short list, though).
posted by Chuffy at 10:51 AM on February 14, 2016 [1 favorite]


Robert Reich almost certainly does not have a credible mole in the White House. Reich is not the sort of person who gets leaked to by decision-makers in a position to know the real mind of the administration, and frankly the administration probably shouldn't have made a decision yet, so there's no mind to know.

It could still very well be Srinivasan, but that's just because he is the odds-on favorite.
posted by anotherpanacea at 10:51 AM on February 14, 2016 [1 favorite]


I know Hillary wants to be president, but you have to wonder if she's not tempted by the SCOTUS opening.
posted by roomthreeseventeen at 10:52 AM on February 14, 2016


So the Senate here is saying: "Here's our advice: wait until the election is over. And by the way, we won't consent to a nomination until then."

Ted Cruz said almost exactly that on Meet the Press today.
posted by ChurchHatesTucker at 10:53 AM on February 14, 2016


Just because it's never taken more than 125 days to get the deal done doesn't mean it can't.

Agreed, but if they're going to delay, it should be for a hell of a lot better reason than lies and an attempt to stack the deck.

It takes two to tango - what are we offering?

Circumstances are offering them an opportunity to do what they were elected to do. An opportunity they don't get very often.

This isn't a hostage situation! Nor a negotiation. The President nominates a Supreme Court Justice. The Senate reviews the nomination. If they don't think putting a judge on the bench is a priority, then they should say so. If they don't like the nominee and don't want to approve them, then each Senator gets the same chance to cast a vote against.

The GOP will get slaughtered by their base if they don't get something for this.

Sucks to be them, then. They set themselves up for this by selling a line of horseshit to the American people that they could stop governing any time they felt like it.

You're asking for the impossible.

No, I'm not. And if the Democrats pulled something like this, the GOP would say the same thing. It's not impossible. They just don't want to do it. That doesn't make it impossible.
posted by zarq at 10:59 AM on February 14, 2016 [28 favorites]


being the safest choice in a circumstance where there's no damn reason for a "safe" choice.

There's no reason to think an un-safe choice would ever make it through the Senate.
posted by drezdn at 11:02 AM on February 14, 2016 [1 favorite]


There are a few paths to victory, here. The first is to drag it out a bit to make the GOP look like terrible loons to the centrists and undecideds and the normally apathetic left-leaning voters come November. This is the smart policy play - gamble to seize the Senate and the Presidency.

I'm not certain Obama is going to want to do that. He's never been much a creature of the Democratic Party - he's president to follow his own agenda. He will want to make the appointment, as it is his right, and he's correct in believing he is supremely well qualified to decide who should be appointed to the bench.

So now we play hardball. Begin with a whisper campaign - we're already seeing it in action here - Eizabeth Warren. Sanders or Clinton, whichever one bows out first. An openly gay jurist. John Stewart. Obama himself. Make it clear to the GOP that if they fail the gamble, if the Dems do retake the senate and keep the White House, it will be an utter calamity for them, and a glorious master-stroke for the Democratic Party and progressive policy.

This is going to be the only time when the Republicans can be certain it will have influence in who is nominated. They can be certain no sway-toothed leftist radicals or Democratic Party superstars ascend to the bench - that certainty evaporates if they do nothing.

It will be a ludicrously acrimonious set of hearings over an uncontroversial center-left jurist with a solid resume - and they will be confirmed, probably by Senators who are safe from being Tea Partied. (John McCaine will say something snarlingly gruff about his own party again while voting to confirm, and others will be voting with him, grateful of the cover.)
posted by Slap*Happy at 11:03 AM on February 14, 2016 [7 favorites]


There have been a lot of excellent comments on here on Scalia's supposed Originalist stance. Can anyone point me (a non-law person) to a more in-depth article on this? I.e. what he claimed to have believed w/r/t to the Founders' original intentions and his own inconsistency on this?

I know I could google it, but I don't think I really know enough about it to be able to adequately judge the sources I'd find. Everyone's a constitutional scholar on the internet.
posted by triggerfinger at 11:03 AM on February 14, 2016 [1 favorite]


The GOP will get slaughtered by their base if they don't get something for this.

They're going to get slaughtered by their opponents if they hold out. I don't see any upside at election-time for Rs to play games here, is the theory that people will flock to a party obstructing the selection of a justice, or that it will prevent them from leaving? I don't get it, it sounds like "hurf durf GOP amirite?" that feels right but is also completely imaginary.
posted by rhizome at 11:06 AM on February 14, 2016 [5 favorites]


No, I'm not. And if the Democrats pulled something like this, the GOP would say the same thing.

But that's the point: everyone will play their roles. Both parties will spin the decision, and in today's highly polarized electorate each pole will buy their side's spin. The White House will aim to embarrass the Republicans by making them oppose a candidate they've previously accepted, like Srinivasan. The Republicans will argue that the Supreme Court is different and that it's a loss to replace a conservative lion like Scalia with a centrist. The dance will last a while and then it'll recede into the general bluster of the election and the news cycle.

And both parties will use this to Get Out the Vote and squeeze the lobbyists and donors dry. Because this time it'll really, really matter: the 5v4 balance of power in SCOTUS is at stake, and four seats are up for grabs: not just Scalia's, but now we remember that judges are mortal, so Ginsburg's, Breyer's, and Kennedy's too.
posted by anotherpanacea at 11:07 AM on February 14, 2016 [4 favorites]


The Republicans have been obstructing since Obama began. They've gained control of both Houses of Congress, most of the governorship and control of sate legislators in that time. So, they don't stand a lot to lose by doing the exact same thing.

So it'll be interesting to see what Obama does.
posted by Brandon Blatcher at 11:08 AM on February 14, 2016 [9 favorites]


Maybe treason isn't the right word, but I still don't understand how announcing you will never allow the president to seat a Supreme is legal or constitutional.
posted by Room 641-A at 11:09 AM on February 14, 2016 [9 favorites]


Well, by my reading the Constitution explicitly allows for it.
posted by rhizome at 11:11 AM on February 14, 2016 [3 favorites]


Maybe treason isn't the right word, but I still don't understand how announcing you will never allow the president to seat a Supreme is legal or constitutional.

Because Activist Senators said so.
posted by Brandon Blatcher at 11:11 AM on February 14, 2016


So, apparently, the Senate is currently in recess. And, everyone seems to be salivating over the idea of Obama making a recess appointment. My question, though, is what does it take for the Senate to not be in recess? Merely a quorum? Could McConnell and a couple of other Senators show up Monday morning, gavel the Senate into session, then just suspend activity for the day? Repeat as needed.
posted by Thorzdad at 11:12 AM on February 14, 2016


The Senate is not in recess now. (See multiple comments above.)
posted by roomthreeseventeen at 11:14 AM on February 14, 2016 [2 favorites]


1) Do not make the mistake that Obama is a Secret Uber-Liberal who's been waiting for this chance to put a left-handed lesbian midget eskimo albino atheist SJW crusader on the Court. He is not going to lean hard left with this choice specifically because he and his principles do not lean hard left on much of anything. If you are expecting miracles you will be disappointed because that's not who's on Obama's shortlist.

2) Robert's Rules for Order are the last refuge of any scoundrel, so expect them to be used extensively to spread the stonewalling blame around.

3) The likes of Ted Cruz, Jeff Sessions, Mike Lee et al. will say a lot of things that read better in their original FWD: FWD: FWD: FWD:.
posted by delfin at 11:15 AM on February 14, 2016 [22 favorites]


Maybe treason isn't the right word, but I still don't understand how announcing you will never allow the president to seat a Supreme is legal or constitutional.

Because Activist Senators said so.


This is just silly. The Constitution gives the Senate the power to reject nominations. Period. They also get to set the rules of those rejections. If they wanted to give the entirety of the power to a single senator, they could. If they don't want to do a full vote of the Senate, they don't have to. Calling it treason is absurd. The Senate is an obstructionist body, and always has been. The Senate opposed the League of Nations, and defeated it, it opposed Civil Rights and defeated it (until one Senator Johnson somehow convinced the south to go along). The Senate is the great dam stopping up the tide of progress, has been, probably always will be, and that's just how America works. We're a backwards nation because the Senate has kept us that way. It's not treason, it's the American Way.
posted by dis_integration at 11:18 AM on February 14, 2016 [8 favorites]


Here is another what if: What if due to the exhaustion from the hoopla of Scalia's passing, discussions, and election frenzy; another conservative SC justice passes? Then there are seven justices and posibly a very different court balance. The nomination must proceed, and we must go forward.

Remember the senior Senator from Utah is an elderly and fearful man, beginning most of his proclamations inside Utah with the three words, "I am afraid." He is most like a green chameleon who easily disguises himself best, on top a large pile of money.
posted by Oyéah at 11:19 AM on February 14, 2016 [1 favorite]


" I still don't understand how announcing you will never allow the president to seat a Supreme is legal or constitutional."

Common Law countries have surprisingly few mechanisms to hold elected officials accountable for doing their jobs; as long as they're not committing financial frauds, there is almost nothing you can do if they refuse to abide by the rules. We give broad deference to our elected officials to interpret their office's duties as they see fit and rely on the mechanism of elections to remove problems from office.

You see this at the local level all the time; your town council, for example, may find itself totally powerless to discipline or exclude a member who keeps revealing private HR discussions to the public. The people whose information is released can sue, but that doesn't remove the member from office, and the rest of the council can't really do anything to exclude the bad actor, just announce they're "sanctioning" him (stern verbal rebuke) and carry on as before.

In an awful lot of cases -- and this is why the "culture" and common practice of the Congress is important -- there's nothing but social norms to make elected officials actually do their jobs. The only ways to remove a non-functioning Senator who won't resign are impeachment and voting him out in a regular election. Impeachment is for "treason, bribery, or other high crimes and misdemeanors," and refusing to do your job is not treason; Treason, as per Article III of the Constitution, "shall consist only in levying War against them [the US], or in adhering to their Enemies, giving them Aid and Comfort." So, joining ISIS or giving money to terrorists = treason. Refusing to do your Constitutionally-mandated job = not treason.

The definition of "treason" in the US is stringently restricted specifically to avoid the abuses of the British Crown that declared dissent, political demands, etc., as treasonous; calling Ted Cruz's obstruction of normal Senate processes "treasonous" is an impossible row to hoe because the Constitution and its Framers specifically want to AVOID calling that sort of thing treason.
posted by Eyebrows McGee at 11:20 AM on February 14, 2016 [39 favorites]


The Constitution gives the Senate the power to reject nominations.

Sight unseen? Before the previous Justice was in the ground? Ok.
posted by Room 641-A at 11:21 AM on February 14, 2016 [3 favorites]


This is just silly. The Constitution gives the Senate the power to reject nominations. Period.

Sure, but they've never decided to just reject ANY nomination for a full year, because election.
posted by Brandon Blatcher at 11:23 AM on February 14, 2016 [11 favorites]


Announcing they won't confirm is not the same as actually not doing it.
posted by rhizome at 11:26 AM on February 14, 2016 [3 favorites]


What is the end game for the Senate if a Democrat wins the white house? Refuse to fill the court for four more years and grit their teeth as the oldest justices die off and the court shrinks to five?
posted by Joey Michaels at 11:29 AM on February 14, 2016


The likes of Ted Cruz, Jeff Sessions, Mike Lee et al. will say a lot of things that read better in their original FWD: FWD: FWD: FWD:.

Or in the comment sections of Yahoo, newspaper websites, or right wing blogs.
posted by SisterHavana at 11:30 AM on February 14, 2016 [1 favorite]


Until the refusal to confirm starts hurting them in elections (which it eventually would), probably. If Ginsburg's the next departure, it actually helps them to have 7 instead of 8.
posted by ctmf at 11:32 AM on February 14, 2016


Announcing they won't confirm is not the same as actually not doing it.

I agree and am glad to see Obama is going to proceed with business as usual. It'll be uncomfortably interesting to watch the Republicans respond.
posted by Brandon Blatcher at 11:36 AM on February 14, 2016 [1 favorite]


Sight unseen? Before the previous Justice was in the ground? Ok.

It makes them horrible people, but it doesn't violate the Constitution. There used to be an assumption that a highly qualified nominee was a relatively uncontroversial matter (see Scalia's unanimous confirmation) and that the President was entitled to his choice, within a relatively broad range of acceptability. That kind of deference, and the belief that governance is a shared enterprise, is completely gone in the House and on life support in the Senate. It's simply a political calculation about risks and rewards now.
posted by Horace Rumpole at 11:38 AM on February 14, 2016 [6 favorites]


zarq: This isn't a hostage situation! Nor a negotiation.

Everything is a negotiation. You can bet someone's thinking right now, "what could we get for agreeing to not even nominate someone?" The answer is probably "nothing worth it," but someone's thinking it.
posted by ctmf at 11:42 AM on February 14, 2016 [2 favorites]






It makes them horrible people, but it doesn't violate the Constitution.

Thank you. I guess it was my last shed of hope for human decency on the right that made me post that as a sincere question.
posted by Room 641-A at 11:57 AM on February 14, 2016 [1 favorite]



What is the end game for the Senate of a Democrat wins the white house? Refuse to fill the court for four more years and grit their teeth as the oldest justices die off and the court shrinks to five?


Considering these are the same Republican Senators who were screaming bloody murder about President Obama's diabolical court-packing scheme when he nominated judges to fill three existing vacancies on the DC Circuit, and actually introduced legislation to remove those three seats from the DC Circuit instead - yes, I can see this being exactly their plan.
posted by SisterHavana at 11:58 AM on February 14, 2016 [4 favorites]


Who would even agree to be the nominee? The vetting process is quite torturous, consumes all of your time for months, with the strong likelihood of never being confirmed and your entire life put on hold for a year or more. Who wants to be known for the rest of their career as the nominee rejected for the Supreme Court?
posted by JackFlash at 12:08 PM on February 14, 2016


What is the end game for the Senate if a Democrat wins the white house? Refuse to fill the court for four more years and grit their teeth as the oldest justices die off and the court shrinks to five?

Yes. If the Dems win the White House but fail to retake the Senate, the vacancy could very well become effectively permanent.

Look, the Supreme Court has been in a state of 5-4 detente for 25 years. In that time, both parties have been plotting to flip the balance and move the nation towards their world view without the Court standing in the way, while the stakes grew higher and higher at every turn. The Republicans know that they are 1 seat from a permanent majority, overturning Roe and untold other decisions back to the New Deal. While the Democrats know that they are one seat from enough votes to uphold the next New Deal. The Republican are NOT going to allow the Democrats to have that victory, ever.

The can stop Obama from making the appointment, so they will. That's really all the analysis required. There are no such things left as institutional norms, this Republican party has shown it does not care, and will stop at nothing to achieve their monstrous agenda. The only thing that will stop them is a Democratic electoral victory, both for the Presidency and in the Senate.
posted by T.D. Strange at 12:08 PM on February 14, 2016 [12 favorites]


Assessed in isolation, sure, but there's a lot going on this year.
posted by rhizome at 12:11 PM on February 14, 2016


ctmf: “We know already the GOP is not responsive to rhetorical shaming. I know these statements are not for them, they're for the benefit of influencing future voters, but still.”

You seem to be missing the whole point here, frankly. A lot of people do.

An eight-person Supreme Court is utterly disastrous to the Republicans. It means that a court which has been ever so slightly balanced in their favor for decades is now fairly solidly balanced against them – and in a year when perhaps the most controversial set of cases in living memory is being heard by the court. Within three months or so, we'll have a stack of at least five or six highly contentious cases on issues voters really care about that have been decided on the liberal side, with very narrow margins, obviously because there is no Scalia there to balance things in favor of the conservatives. And everyone will point to those cases and say: see? The Republicans are dragging their feet, and it's only hurting them.

So sitting this out and just waiting a year until the election is over is not going to be a great option for the Republicans. But what's their alternative? Approving whomever Obama nominates – and, yes, taking an electoral hit for appearing to cooperate with him – and thus having a person who is bound to be at least relatively liberal making Supreme Court decisions even more assuredly liberal, except now for decades to come? They obviously don't want to do that. And yet waiting out the election clearly isn't a perfect strategy; even Republicans are realistic enough to know that it's possible they won't have their candidate in the White House when the dust settles.

This is, in short, a tragedy for Republicans in the short term. It might – might – turn out to be a good thing for them in the long term, depending on how certain we are that Republicans will take the White House next fall. But even so, the damage that will be done by having their legislators sit on their hands for twelve months will be incalculable – not just because (contrary to some belief) inactive government officials do annoy voters, but also because this whole thing will be fresh in everybody's minds while the Court is churning onward through its docket with its immediately more liberal bent.

People want to spin this as some sort of Democrat-Republican gridlock. It isn't. It's only an even situation if we (a) ignore the short-term damage this will do and (b) take it as given that a Republican will win the White House. But neither of those make sense. This is bad for Republicans, pure and simple – it's certainly bad for them over the next 12 months, and it's probably bad for them afterwards.
posted by koeselitz at 12:11 PM on February 14, 2016 [20 favorites]


(I should say: the wrinkle on this is that the current eight-person Court is disastrous to Republican principles and ideological goals. That doesn't mean it's electorally disastrous; of course, they will use any number of the liberal decisions the Court is likely to issue soon as bugaboos in the coming election, insisting that people must get out and vote if they don't want more of this awful stuff happening. The Supreme Court will almost certainly be a very, very big part of this election. It remains to be seen how well the paranoid tack of "look how awful the Supreme Court is! We must save it!" will work on voters.)
posted by koeselitz at 12:13 PM on February 14, 2016 [4 favorites]


It's also very likely bad for the Republicans come November elections. Candidates always try to use SCOTUS nominations to get out the vote. But the Democrats chances look likely to improve if there's an actual empty seat to fill in the first weeks of the new President's term.

Democrats generally have an advantage in presidential election years, for turnout reasons. But pro-life voters are more focused and mobilized than pro-choice voters. More pro-life voters come out under the ordinary threat of "the next President could nominate a SCOTUS Justice" than pro-choice voters do. An empty seat may well force pro-choice voters to see the salience of the question in a new way.
posted by anotherpanacea at 12:19 PM on February 14, 2016 [1 favorite]


There used to be an assumption that a highly qualified nominee was a relatively uncontroversial matter (see Scalia's unanimous confirmation) and that the President was entitled to his choice

With a vastly stronger court willing to find rights behind every penumbra that's inevitable.
posted by jpe at 12:24 PM on February 14, 2016


I guess if we ever get such a court, jpe, then we'll find out if you're correct.
posted by koeselitz at 12:25 PM on February 14, 2016 [3 favorites]


Scalia on Bush v. Gore: "Get over it."
posted by rhizome at 12:28 PM on February 14, 2016 [1 favorite]


I don't think this energizes the Republican base if Trump is the nominee, because they have no reason to think that he'll care that much about nominating someone who shares their values. Actually, I have no idea what the fuck happens if Trump is the nominee. This is such a weird electoral year.

The Republicans definitely have a lot more to lose than the Democrats do. If they confirm Obama's appointee, it tips the balance of the court, and it pisses off their base. If they don't, they look like unhinged obstructionists, plus they may get an even worse appointee in a year. Electorally, I think having an open seat is a wash: it equally energizes the Democratic and the Republican base. (Exception: see above about Trump.) I don't see how this really hurts the Democrats, and I don't see how it fails to hurt the Republicans.
posted by ArbitraryAndCapricious at 12:28 PM on February 14, 2016


I think something else and potentially awful is underway, this thing is why the Senate leaders are acting as if Obama has no rights in this matter. This was completely unexpected and threw a wrench into the undercurrents of this time. The Republican party has no credible candidate in this election, it doesn't seem to be bothering them much.

Doesn't that scare all of you? Haven't the bells gone off, that they have some other plan? Obama has gone on being President all the while the party pretends he isn't there, except for complaining about his strength, calling it totalitarianism on his part, then calling it weakness, when he fails to kill another 100,000 Iraqis, or fire missles at Russia. The joint chiefs looked very uncomfortable at the SOTU. Oh dear we are a nation protected by law, they can't very well unseat a SC justice once in. Better get cracking. This has forced some unseen hand. Who else was at the ranch? Seriously.
posted by Oyéah at 12:28 PM on February 14, 2016 [1 favorite]


I like Capt. Renault's suggestion. Go with the Centrist, and when they don't approve him in a reasonable time, withdraw the nomination, and nominate someone further left, causing the GOP to regret not going with the last guy.

Then repeat every week or so... Somewhere between Preet Bharara and Noam Chomsky they'll give up..
posted by mikelieman at 12:29 PM on February 14, 2016 [4 favorites]


I'm not missing the point; that's the way I see it too. I'm not sure the Republicans are weighing their two bad options the same, though. They seem to be pretty sure waiting is the least-bad choice. They seem more afraid of being seen to give in to the Dems than of what the 8-strong SC is going to do to them or the accusations of obstruction.

Given that, they're acting perfectly as expected. If that's the way they see it, a nominee will not get confirmed without a big visible concession from the Dems in return to mollify the base. They've created this no-compromise constituency, now they're prisoners of it.
posted by ctmf at 12:29 PM on February 14, 2016 [1 favorite]


Meanwhile, as Linda Hirshman points out in her helpful article about this – “If Republicans block Obama's Supreme Court nomination, he wins anyway” – even if the Supreme Court is just flat out deadlocked and can't do anything until a year from now, Obama and the liberals still win. Why? Because almost all of the appeals courts tilt decisively liberal. The main purpose of the Supreme Court, in Republican eyes, is to invalidate the liberal decisions of the lower courts. If the Supreme Court is deadlocked, then those liberal decisions coming from the lower courts will remain standing.

And in light of that – ideologically speaking – letting Obama install his nominee might actually be a net positive for the Republicans, depending on who exactly he nominates.
posted by koeselitz at 12:32 PM on February 14, 2016 [7 favorites]


The Republican party has no credible candidate in this election, it doesn't seem to be bothering them much.
Sure they do. I actually think you could argue that a bigger problem is that the Democrats don't have any credible candidates in this election.

My fantasy: Obama offers it to Hillary, and then oops!, someone else has to get in the race and take over her delegates. In my fantasy, it'd be Elizabeth Warren, but in reality it would probably be someone like Biden.
posted by ArbitraryAndCapricious at 12:32 PM on February 14, 2016 [1 favorite]


letting Obama install his nominee might actually be a net positive for the Republicans, depending on who exactly he nominates.

Wasn't Kennedy thought to be a dependable liberal at nomination, but has ruled more to the right than anticipated? I think it's one of the current 80s-90s justices.
posted by rhizome at 12:34 PM on February 14, 2016


I think it's actually the other way around. Kennedy was a Reagan nominee, and he was assumed to be a reliable conservative vote, but he hasn't turned out that way.
posted by ArbitraryAndCapricious at 12:36 PM on February 14, 2016 [2 favorites]


Given that, they're acting perfectly as expected.

People are free to say what they want of course, but it is NOT expected. What is expected is that they will do their goddamned jobs and vote on his nominee. Liberals should not be giving them rhetorical cover by acting like this is business as usual. Whether it's surprising or not coming from this obstructionist Senate, this is a difference in kind. This is the difference between targeted airstrikes and dropping a nuclear bomb. We shouldn't be acting like this is the same as all their other obstruction. This is an enormous escalation.

I actually think you could argue that a bigger problem is that the Democrats don't have any credible candidates in this election.

Bernie Sanders, who received more votes than anyone in New Hampshire primary history, might disagree.
posted by dialetheia at 12:36 PM on February 14, 2016 [9 favorites]


What is expected is that they will do their goddamned jobs and vote on his nominee.

This is leading toward W's "upper down vote" during the Roberts/Alito nomination era.
posted by rhizome at 12:39 PM on February 14, 2016 [1 favorite]


We need an up or down vote on the ground, this time.
posted by thelonius at 12:43 PM on February 14, 2016 [2 favorites]


2012: Yes, America, We Have Executed an Innocent Man - "Mocking the rationale of both, and unsatisfied with the scope of Justice Thomas' majority opinion, Justice Scalia wrote a concurrence he will have to live with the rest of his life. As he sought to destroy Justice Souter's argument about the doubts reasonable people have about the accuracy and reliability of America's death penalty regime, Justice Scalia described a criminal justice system unfamiliar to anyone who has ever covered a murder case, read a book about one, or watched television news. Justice Scalia wrote:
It should be noted at the outset that the dissent does not discuss a single case -- not one -- in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby."
2014: Getting It Dead Wrong for 30 Years
According to Supreme Court Justice Antonin Scalia, Henry Lee McCollum deserved to die for the brutal rape and murder of 11-year-old Sabrina Buie. There's just one problem, and a frequent one in death penalty cases: Henry Lee McCollum didn't do it.
Scalia's Defense of the Death Penalty Is In Tatters
The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat.

How enviable a quiet death by lethal injection compared with that!
Scalia was referring to the case of Henry Lee McCollum, a North Carolina man who was convicted of the brutal rape and murder of Sabrina Buie, age 11, and his half brother Leon Brown, who was convicted as an accessory.
DNA Evidence Clears Two Men in 1983 Murder

"a great legal mind." "warmth, ebullience, generosity" "colorful and clear."
posted by the man of twists and turns at 12:46 PM on February 14, 2016 [30 favorites]


"Judge x is liberal / conservative" is dangerous typecasting. Every judge has certain issues on which they will defy the perception that SCOTUS is a team sport. Even Scalia saw the light on many 4th Amendment issues, as has been noted. Roberts has leaned one way on social issues and another on fiscals such as the ACA. Kennedy has his own quirks and tells.

Obama will nominate someone center-rightist because that's his own comfort zone, it will make confirmation more likely if the nom somehow reaches the floor, and replacing Scalia with a social conservative won't imperil social gains Obama's admin has already won. The Repubs, on the other hand, are begging for a strong liberal nominee because then their painting of it as EMPEROR OBAMA STACKING THE COURT WITH DANGEROUSLY PARTISAN ACTIVIST JUDGES will be easier to sell and easier to stall with. The closer the election gets, the more reasonable some will find the "wait for the election" argument and public opinion will tilt.

Of course, the fabled 27% feel that everything Obama does and has done must be opposed and reversed. The fact that they also believe that Obama has a 666 tattoo on his scalp is irrelevant because they have significant influence through their Congressional representation. This is why I stay stocked up on bourbon.
posted by delfin at 12:50 PM on February 14, 2016


It's actually dangerous situation if allowed to go on too long. One of these days there's going to be a situation that needs to be resolved quickly and with finality. Imagine for example if there were lawsuits about whether Ted Cruz is a natural born citizen. This isn't something you can let play out in the circuit courts indefinitely because it is time sensitive. And you can't have a fair election if one circuit say he is eligible to be president and another say he is not. That would be total chaos and might result it actual physical violence. You need a functioning Supreme Court with an odd number of justices so you can get a final ruling (even if it is a shitty ruling). I believe that even in the Republican party there are still a few adults who know this and, after letting the kids throw tantrums for a while, will twist their arms to get them to do what needs to be done.
posted by great_radio at 12:51 PM on February 14, 2016 [3 favorites]


Because almost all of the appeals courts tilt decisively liberal.

Not the D.C. Circuit, which is arguably the most important one for anyone who likes having a functioning government. Those APA decisions (that is, decisions concerning whether a government agency has properly created or applied rules) aren't as sexy as the First Amendment ones, but their impact can be incalculable. I think the immediately pending set of cases are primarily against cases decided in favor of liberal positions, but having the Court be 4-4 for an extended period would not be good.
posted by praemunire at 12:56 PM on February 14, 2016


Obama should choose a SC justice America can agree on: Dean Strang!
posted by orrnyereg at 12:58 PM on February 14, 2016 [8 favorites]


ctmf, I think what bothers me is not the facts you present, but your seeming acceptance of the situation as it exists and your withering contempt for those who point out that the situation is absolute wrong and bad.

Yes, the Republicans **CAN** hold a Supreme Court seat hostage and demand legislative concessions from the Democrats in exchange for doing their job. I do not argue in the slightest that they do have that ability.

But to argue that this extortionist situation is proper, or normal, or just the way things are and we should quietly accept it without raising hell, is monstrous.

Moreover, its new. The Democrats didn't extort legislative concessions from Republican presidents in exchange for approving reasonable candidates. Yes, they shot down individual crappy candidates (Bork for example), but ultimately they recognized that elections have consequences and that the president, for better or worse, does get to be the one deciding who is seated. With less than a year left in his term, the Democrats voted to approve Ronald Wilson Reagan's appointment of Anthony Kennedy, a man seen then as a reliable conservative vote on the Court.

The current situation, where the Republicans hold everything hostage until the Democrats cave on something else is indeed the situation as it exists. But its deeply wrong, and to argue that anyone who objects to this essentially immoral and improper way of doing business the Republicans have developed in recent years is a fool with no understanding of the world is also wrong.

We need to be shouting this from the rooftops, pointing out daily how horribly twisted and wrong the Republican position is, how completely, literally literally not just figuratively literally, unprecedented their actions are. Literally no party, at any time in all American history, has done what they are proposing to do. Ever. Not once.

So yes, they technically can. But to argue that we should passively accept that situation, that we should normalize it and accept it, is to abandon our core principles and functioning as a nation. So yes, you're right in the technical sense that there's nothing in the rules forbidding the R's from doing what they propose. But you're wrong in saying we should accept that.
posted by sotonohito at 12:59 PM on February 14, 2016 [39 favorites]


This isn't something you can let play out in the circuit courts indefinitely because it is time sensitive.

The questions that can be heard directly in the Supreme Court ("original jurisdiction") are a pretty limited group. (Statute is here.)
posted by praemunire at 12:59 PM on February 14, 2016


You need a functioning Supreme Court with an odd number of justices

We're so used to the bullshit we're immersed in were forget that decisions can be better than hairline splits between the two factions.

This is the Roberts Court after all, maybe he can find a brain and/or moral center.
posted by Heywood Mogroot III at 1:11 PM on February 14, 2016


“warmth, ebullience, generosity” “colorful and clear.”

It is quite possible to have these traits and still be entirely wrong on legal opinions.
posted by Going To Maine at 1:18 PM on February 14, 2016 [1 favorite]


your withering contempt for those who point out that the situation is absolute wrong and bad.

No, I don't have any contempt for anyone. I'm just more of a "what do we do now" person than a get-outraged-and-blame person. To the extent throwing a big fit about it influences people to vote D next time, and thus put pressure on the R's to do something different, great. That's valuable too, but takes a long time.

I do find it amazing that everyone can bash the Republicans for obstruction, while at the same time expecting us to get everything we want with no compromise necessary. Oh, because they've never taken advantage of the situation before, now it's an outrage? We'll either find a way to make that choice too painful for them, or we won't. They don't really care how mad it makes us.
posted by ctmf at 1:23 PM on February 14, 2016


“warmth, ebullience, generosity” “colorful and clear.”

It is quite possible to have these traits and still be entirely wrong on legal opinions.


He was not remotely warm or generous in his gleeful, condescending approach to sending innocent people to jail.
posted by Lyme Drop at 1:26 PM on February 14, 2016 [13 favorites]


while at the same time expecting us to get everything we want with no compromise necessary

This sounds like hyperbole, where is this happening?
posted by rhizome at 1:39 PM on February 14, 2016 [3 favorites]


*“warmth, ebullience, generosity” “colorful and clear.”

It is quite possible to have these traits and still be entirely wrong on legal opinions.

He was not remotely warm or generous in his gleeful, condescending approach to sending innocent people to jail.*

Yes, but he was when working with folks like Lessig, that ACLU lawyer, and when hanging with Ruth Bader Ginsburg, and it is to those contexts that that phrase gets applied. Kind of sucks, but those are adjectives about personal interactions, not societal impact.
posted by Going To Maine at 1:43 PM on February 14, 2016 [1 favorite]


Being a nice guy to hang out with is an important skill for a monster.
posted by rhizome at 1:45 PM on February 14, 2016 [22 favorites]


I do find it amazing that everyone can bash the Republicans for obstruction, while at the same time expecting us to get everything we want with no compromise necessary.

They've changed your expectations, and that's the problem.

A moderate, middle-of-the-road candidate who disagrees with them on say, abortion rights and gay marriage but leans conservative on other issues is not acceptable to them anymore. Nominees used to be given a fair hearing. Now they say they won't even do that, and in doing so they are signaling to the country that they are so fundamentalist, so right wing, that they won't stand for anything less than a candidate who walks in lockstep with them. And because they've functioned as the Obstructionist Party for so many years, people like you think that this is not only sane and acceptable behavior, but they should be negotiated with rather than told to go stuff themselves.

Oh, because they've never taken advantage of the situation before, now it's an outrage?

It's an outrage because they're disenfranchising the electorate who voted for President Obama and trying to justify doing so with lies about precedent.
posted by zarq at 1:47 PM on February 14, 2016 [42 favorites]


Being a nice guy to hang out with is an important skill for a monster.

Yes, as Ted Cruz is discovering.
posted by Going To Maine at 1:48 PM on February 14, 2016 [19 favorites]


I'm curious what the die hard Democrats here would do if the situation was reversed and losing a liberal majority was at stake and maybe Roe would be overturned. Would you want the Democrats to try and prevent it with a year of obstruction? Seems like the best move to me if you can get away with it.
posted by Drinky Die at 1:49 PM on February 14, 2016 [4 favorites]


From Politico; July 2007:

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.” “We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”
posted by Seymour Zamboni at 1:51 PM on February 14, 2016 [4 favorites]


Would you want the Democrats to try and prevent it with a year of obstruction?

Well you don't advertise it. Remember, don't ask, don't tell.
posted by Room 641-A at 2:01 PM on February 14, 2016 [1 favorite]


>> He was not remotely warm or generous in his gleeful, condescending approach to sending innocent people to jail.*

> Yes, but he was when working with folks like Lessig, that ACLU lawyer, and when hanging with Ruth Bader Ginsburg, .....


I am reminded of a person going out on a dinner date with someone who is attractive, smart, and funny, only to discover that they treat the servers like shit. Even Reddit says "run away" in this situation. I'm sure someone here can cite an aphorism along the lines of "to know the true spirit of a man, don't look at how he treats his equals, look at how he treats those below him."

Ah, what the hell, I went and did the search myself. I thought it might be by Jesus, turns out it's J. K. Rowling:
If you want to see the true measure of a man, watch how he treats his inferiors, not his equals.

-Harry Potter and the Goblet of Fire
That's close enough for me.
posted by benito.strauss at 2:01 PM on February 14, 2016 [14 favorites]


My prediction: first nominee gets borked, in predictable fashion. Second nominee, whoever they are, goes through. Republicans spend the whole process in a kabuki of fighting against Obama's tyranny because they hope it can win them the white house (it won't) and thus give them a shot at the next three or four appointments.
posted by Navelgazer at 2:02 PM on February 14, 2016 [1 favorite]


I thought it might be by Jesus, turns out it's J. K. Rowling:

I thought it was from the Rush song about the frogs
posted by thelonius at 2:03 PM on February 14, 2016 [4 favorites]


I'm curious what the die hard Democrats here would do if the situation was reversed and losing a liberal majority was at stake and maybe Roe would be overturned. Would you want the Democrats to try and prevent it with a year of obstruction? Seems like the best move to me if you can get away with it.

Uhhhhh... That kind of already did happen with Bush appointing Alito in place of O'Connor.

Hell it happened the second that Bush I got Thomas (narrowly) appointed and the Supreme Court subsequently decided PP v. Casey. The assault on and piecemeal style dismantling of Roe hasn't let up since.
posted by Talez at 2:03 PM on February 14, 2016 [5 favorites]


the man of twists and turns: "a great legal mind." "warmth, ebullience, generosity" "colorful and clear."

Are you honestly suggesting that those things can't possibly be true of someone who was dramatically and sometimes woefully wrong? That a human personality is not capable of being all these things at once? There's no contradiction here - Scalia really was all of those things and more. Go complain to Ruth Bader Ginsburg if you disagree.
posted by koeselitz at 2:05 PM on February 14, 2016 [3 favorites]


If you want to see the true measure of a man, watch how he treats his inferiors, not his equals.

Yeah, I'm firmly convinced that the measure of civilization is how we treat our prisoners. Which, well, doesn't look good for US.
posted by valkane at 2:06 PM on February 14, 2016 [3 favorites]


I actually think you could argue that a bigger problem is that the Democrats don't have any credible candidates in this election.

Of course, this would be a more compelling line of argument of it was in any way true.
posted by IAmUnaware at 2:08 PM on February 14, 2016 [5 favorites]


It's an outrage because they're disenfranchising the electorate who voted for President Obama

Now there's hyperbole. President Obama gets to do the thing he was elected (in part by me) to do - nominate a candidate. The Senate, also elected by the people (most of them not by me, but still legally), gets the power they're granted by the Constitution.

and trying to justify doing so with lies about precedent.

That's a fact, though.

Look, I don't like the situation any more than anyone else. I feel like I'm getting sucked into defending Republicans, which I don't want to do, so I'll just stop now. I'm just saying they're acting perfectly rationally and predictably for their situation.
posted by ctmf at 2:08 PM on February 14, 2016 [5 favorites]


Are you honestly suggesting that those things can't possibly be true of someone who was dramatically and sometimes woefully wrong?

They're irrelevant. Bringing them up, as you and others have, functions to distract from his record as a justice.
posted by the man of twists and turns at 2:13 PM on February 14, 2016 [6 favorites]


Did I make any positive comment about Antonin Scalia here that didn't say, clearly and forcefully, that he was wrong? If admitting anything nice or positive about a person on the day after they've died is "distracting," then why talk about anything ever?
posted by koeselitz at 2:15 PM on February 14, 2016 [1 favorite]


They're irrelevant. Bringing them up, as you and others have, functions to distract from his record as a justice.

The first mention you made of them was here, in which you mention a bad & vitriolic statement of his in order to slam a colleague who said some flattering things about him. I would agree that his personality has little to do with his judicial record.
posted by Going To Maine at 2:18 PM on February 14, 2016


Besides which - these things we're talking about, Scalia's intractability, his eloquence, his style, and (yes!) his intelligence, are absolutely essential things if we want to understand his legacy. We can't steamroll over those things and try to ignore them; they are the reason he got away with so many things, the reason why his often contradictory ideas were accepted, the reason why he had so much force on the court. That stuff is true, whether we want to admit it or not - and the only way we can move past Scalia's legacy is by acknowledging and confronting it honestly.
posted by koeselitz at 2:18 PM on February 14, 2016 [8 favorites]


I'm curious what the die hard Democrats here would do if the situation was reversed and losing a liberal majority was at stake and maybe Roe would be overturned. Would you want the Democrats to try and prevent it with a year of obstruction?

During this election cycle I've been thinking a lot about the tyranny of the majority, and how in the late 18th century that was the major reason people were skeptical of democracy's virtues (and the reason the American republic was such a bold experiment).

The checks and balances that prevented the worst sort of majoritarianism for the last couple of centuries have relied on unwritten or unenforced rules of decorum to encourage compromise and consensus-building. That sort of system is just not built for partisan total war.

Now the federal government is essentially being asked to incorporate two genuinely incompatible, increasingly entrenched political and cultural frameworks (one based in reality and one not, in my opinion), and the space for compromise and consensus is small and shrinking fast. Scorched-earth tactics have become rational for both sides (though, again, certainly one side makes more use of them than the other). You just can't govern coherently that way in this system. Nobody could.

So... are Republicans behaving irresponsibly? And would it be irresponsible for Democrats to do the same if their positions were reversed? To the institutions of American governance, yes. To their constituents, no. The fact that those responsibilities are in deep conflict is a symptom of a very grave disease, no matter what the Senate ends up doing here.
posted by saturday_morning at 2:33 PM on February 14, 2016 [18 favorites]


Realistically, the Repubs have no reason not to stonewall. The fabled 27% expect nothing less, and the less Manichean among them can hope that the Repubs nominee's puncher's chance succeeds and/or Hillary Scandal #473 finally sticks. If not, they can either grudgingly allow a center-right nominee to be voted on before the election - or the same nominee after it. Why award the big prize before you've officially lost the game?

And if you think that Hillary's election will make Repubs say "oh well, they have a mandate now" and acquiesce to some theoretical progressive judge, think again. The right's opening offer will be "nominate Priscilla Owen or we riot."
posted by delfin at 2:37 PM on February 14, 2016


Yeah, what's with the 50/50 split among Americans? What're the odds?
posted by valkane at 2:41 PM on February 14, 2016


That sort of system is just not built for partisan total war.

iirc, the so-called Founding Fathers were very concerned about the dangers of factionalism, and they distrusted political parties for this reason
posted by thelonius at 2:41 PM on February 14, 2016 [1 favorite]


From Patton Oswalt on twitter:

"You get Bowie back but it means Scalia comes back with him," said The Devil. I stared into his ice flame eyes. A crow screamed.
posted by happyroach at 2:46 PM on February 14, 2016 [36 favorites]




I'm kind of amazed it's been a whole 24 hours, almost, and I haven't seen reports of any loonball teaparty mouthpieces (you know, like Ted Cruz) saying that Scalia was assassinated by Evil Obama's death squads so he could nominate a gay commie drug addict to the court.

Yet, at least.
posted by stavrosthewonderchicken at 2:56 PM on February 14, 2016


Much love to the SCOTUSblog team that thought they had the long weekend off and keeps putting out top notch content.
posted by roomthreeseventeen at 2:56 PM on February 14, 2016 [3 favorites]


I haven't seen reports of any loonball teaparty mouthpieces (you know, like Ted Cruz) saying that Scalia was assassinated by Evil Obama's death squads so he could nominate a gay commie drug addict to the court.

The rank and file loonballs are out in front of it, at least!
posted by dialetheia at 2:57 PM on February 14, 2016


Going To Maine: "Lyle Denniston at SCOTUSblog: “Commentary: Scalia in history – a first draft”"

"When enough time has passed that the vividness of his personality has faded, and what remains is the deposit of an incredibly rich life in the law, history’s judgment may well focus more on his intellect than on his viscera, and he will be thought among the greatest."

There's a reason we don't publish first drafts. Please revise and resubmit, and come see me after class for remedial ethics lessons.
posted by barnacles at 2:58 PM on February 14, 2016 [9 favorites]


We can't steamroll over [Scalia's eloquence, style, intelligence, etc.] and try to ignore them; they are the reason he got away with so many things, the reason why his often contradictory ideas were accepted, the reason why he had so much force on the court.

I think this can be vastly exaggerated. He had so much force on the court because he was a member of the ideological majority committed to the most extreme position and managed not to take positions so very outrageous that his conservative colleagues couldn't in good conscience sign on. It's not as if every justice writes a decision, submits it to the group, and then the justices all vote for the best one. Replace one conservative justice with a liberal one and Scalia is just a cranky old man.

Probably the smartest justice in recent years was David Souter, and, unfortunately, his most lasting contribution to jurisprudence turned out to be (mostly unintentionally) trashing our pleading standards.
posted by praemunire at 2:59 PM on February 14, 2016 [8 favorites]


One of the grandest flaws in the logic of so many Democrats when they feel they have the high moral road, is that they imagine that the opponent will maintain some measure of integrity. They are ever surprised when the depths of 'treachery' erupts ... when they find themselves falling away from the football that gets swept just out of their reach. It would be funny if not so tragic.

The Republicans will now fight like cornered beasts with every nasty, cruel, insane weapon or scheme that can be imagined - and some that can't.

Pointing this scenario out is not approval, acceptance nor cowardice. It is simply something "idealists" don't want to discuss.
posted by Surfurrus at 3:03 PM on February 14, 2016 [8 favorites]


The rank and file loonballs are out in front of it, at least!

Hah! RFLs to the rescue!
posted by stavrosthewonderchicken at 3:08 PM on February 14, 2016 [2 favorites]


Shitbag party is going to shitbag. Dems have got to find ways around that, probably involving not immediately giving in. It's not like they haven't had lots of opportnity for practice.
posted by Artw at 3:11 PM on February 14, 2016 [5 favorites]


I thought it might be by Jesus, turns out it's J. K. Rowling:

I thought it was from the Rush song about the frogs


Now I want a prog rock album based on Aristophanes
posted by hippybear at 3:17 PM on February 14, 2016 [13 favorites]


i blame reid and the dnc for the staggering lack of response to the 50-state-strategy. no message, no ground-game, no money.
posted by j_curiouser at 3:19 PM on February 14, 2016 [5 favorites]


The fact that both parties have, as a central and unshakeable narrative among a significant portion of the faithful, the idea that the other party is constantly winning and consistently outflanking should tell me something important. But I am fucked if I know what it means.
posted by howfar at 3:19 PM on February 14, 2016 [3 favorites]


The rank and file loonballs are out in front of it, at least,

I knew Alex Jones was already pushing the "Scalia was murdered" meme, but, holy crap, those tweets are beyond deranged. DOD satellites? Just...wow...
posted by Thorzdad at 3:19 PM on February 14, 2016


> Now I want a prog rock album based on Aristophanes

A little faith in Google search and the Prog Rock Community yields:

Area (band):
Tic&Tac, their sixth studio album, was released in 1980. Then, Area released Gli Uccelli ("The Birds"), a Greek classic comedy by Aristophanes, in collaboration with the theatrical company Nuova Scena and directed by Memè Perlini.
And if you can't wait until you track that down, YouTube has Cosmic Trip Machine - Aristophanes.
posted by benito.strauss at 3:26 PM on February 14, 2016 [3 favorites]


I don't believe Scalia was murdered, but I did think for a minute that someone liberal found the Death Note notebook.
posted by emjaybee at 3:32 PM on February 14, 2016 [4 favorites]


The fact that both parties have, as a central and unshakeable narrative among a significant portion of the faithful, the idea that the other party is constantly winning and consistently outflanking should tell me something important. But I am fucked if I know what it means.

I think thoughts like that come when people feel like they are losing a battle - they may tell us that the "faithful" themselves feel powerless, and that when pure partisan beliefs polarized to the extreme clash, the likelihood of a "pure" victory is incredibly small, and anything less than that is viewed as failure.

Just one interpretation - but it's certainly the sort of feeling that comes when one is fighting both a defensive and a losing battle.
posted by MysticMCJ at 3:33 PM on February 14, 2016 [2 favorites]


> The fact that both parties have, as a central and unshakeable narrative among a significant portion of the faithful, the idea that the other party is constantly winning and consistently outflanking should tell me something important. But I am fucked if I know what it means.

What it tells us is that both parties see the end of the iterated prisoner's dilemma in sight, so we are shifting from an ecosystem of nice strategies to nasty strategies as everyone prepares their endgame.
posted by I-Write-Essays at 3:35 PM on February 14, 2016 [3 favorites]


So, this is the thread in which I learned Joan Crawford had died.

*tearfully builds shrine out of coat hangers*
posted by um at 3:35 PM on February 14, 2016 [7 favorites]


So, this is the thread in which I learned Joan Crawford had died.

She's been dead longer than Scalia was a Supreme Court Justice ..
posted by dotgirl at 3:36 PM on February 14, 2016 [4 favorites]


>Now I want a prog rock album based on Aristophanes

It looks like Dionysis Savvopoulos wrote one in 1977, based on a musical he wrote in 1975. I can't find any english sources about it and I don't speak any greek, so this may actually be about how hot his girlfriend was, or the terrible government or something. But it's probably Aristophanes.
posted by sandswipe at 3:37 PM on February 14, 2016 [5 favorites]


polymodus: When people say that Scalia was harmfully disingenuous, that's a political implication.

I don't have as much of an issue with the politics of Scalia's decisions. It's the naked intellectual dishonesty he displayed in many of his decisions. As it has been stated upthread, Scalia's "originalism" was an exercise in trying to bend the Constitution and Framers' intent to suit the decision he wanted to see in the case. His decisions and dissents were the legal version of 'Saved By the Bell'.
posted by reenum at 3:39 PM on February 14, 2016 [5 favorites]


Whenever I think of presidential moxie, I remember this anecdote from Harry S. Truman. After Roosevelt's death and Truman becoming president, Truman decided to change his Secretary of War, Henry Stimson. Stimson complained, saying the dead president wouldn't have liked that. Truman responded: the president is alive and he likes it very much.
posted by dances_with_sneetches at 3:44 PM on February 14, 2016 [33 favorites]


His decisions and dissents were the legal version of 'Saved By the Bell'.

Who can forget the term of the Supreme Court when Clarence Thomas got addicted to caffeine pills, or when John Paul Stephens delivered that baby in an elevator?
posted by Going To Maine at 3:45 PM on February 14, 2016 [15 favorites]




"As it has been stated upthread, Scalia's "originalism" was an exercise in trying to bend the Constitution and Framers' intent to suit the decision he wanted to see in the case. "

I've read analysis in the past that suggested that every supreme court justice votes more with their own political perspective than their supposed philosophical constitutional views. I'm not sure where I read this, or how compelling the arguments would have been to those in the know, but it makes sense to me.
posted by el io at 4:08 PM on February 14, 2016 [1 favorite]




What is that now? Five? Six variations of the "he's dead, good" thing in this thread? Sheesh.

I don't understand how anyone can really expect Obama to nominate a Democratic wet dream candidate. He's going to do what is most prudent for the situation, the sort of thing he always does, which is probably find a unanimously-confirmed lower court judge he likes and put their name up. This will make it hard for the GOP obstructionists to hold their senators in lockstep behind the obstructionism plan. Trading Scalia for a moderate judge is certainly a net gain from the Dem perspective, especially if that judge ultimately ends up helping to halt the dismantling of Roe v Wade. I think that there's good odds a female judge out there fits that bill. The longer the obstructionism goes on the more that it will drive turnout which disproportionately favors the Dems as well. Especially so if Trump somehow wins the nomination, because he won't be seen as a true Republican by a lot of the rank-and-file, and certainly not as someone who can be relied upon to hold the long term goals of the party in any esteem whatsoever.
posted by axiom at 4:23 PM on February 14, 2016 [3 favorites]


A massive middle, massively excluded.
posted by rhizome at 4:39 PM on February 14, 2016 [1 favorite]


What is that now? Five? Six variations of the "he's dead, good" thing in this thread? Sheesh.

Wait till Cheney dies, there will be literally dancing in the streets (in some countries) (unlike Kissinger, who is actually immortal, and sadly will never perish).
posted by el io at 4:39 PM on February 14, 2016 [7 favorites]


It's not that Kissinger is immortal, per se. He was born without a soul, so there is nothing to ever actually leave his body to signal that he is not alive.
posted by hippybear at 4:41 PM on February 14, 2016 [18 favorites]


I suspect Obamas going to put forward a fairly middle of the road candidate because that's the way he rolls.
posted by Artw at 4:43 PM on February 14, 2016 [1 favorite]


The more I think about it, the more I think it could be Jane Kelly. Grassley is going to have a hard time explaining why he won't give a hearing to someone whom he championed a couple of years ago, and he's going to have a hard time explaining to folks in Iowa why he didn't support the nomination of an Iowan who seems pretty popular here across political lines.

And I mean, it would be pretty bad-ass to have a career public defender on the court. I don't know a thing about her views on anything else, but that can't be a bad sign.
posted by ArbitraryAndCapricious at 4:46 PM on February 14, 2016 [6 favorites]


My only suspicion is that it will be a male POC. But I have no certainty as to who.
posted by Going To Maine at 4:49 PM on February 14, 2016


Grassley speaking in support of Kelly's confirmation in 2013. That's on his website.
posted by ArbitraryAndCapricious at 4:50 PM on February 14, 2016


From a statistical standpoint, Obama should nominate a woman. Ladies have a longer life expectancy.
posted by reenum at 4:57 PM on February 14, 2016 [2 favorites]


Pál Erdős famously thought that there was a flaw in the US constitution that made the US susceptible to a legal form of dictatorship. I've been rereading the US constitution with that in mind and I noticed something else that's interesting: the President can only be impeached by the Senate, presided over by the Chief Justice. The President appoints the Chief Justice. Implicitly, if the Chief Justice dies or otherwise loses office then the President cannot be impeached.

Now John Roberts is a relatively young man, and I hope he continues to enjoy good health, but there have been occasions when his predecessors were less fortunate. I wonder whether any Presidents (or Chief Justices) have contemplated creating a vacancy in order to gain a tactical advantage?
posted by Joe in Australia at 5:17 PM on February 14, 2016 [3 favorites]




rhizome -- help. Poe's Law is a bitch. What'm I looking at here?
posted by saturday_morning at 5:25 PM on February 14, 2016 [4 favorites]


I've been watching some of the interviews and speeches Scalia participated in on youtube, including this Kalb Report interview of him with Justice Ginsberg from last year, which originally aired on C-SPAN.

Near the end of that video, around the one hour mark, was this:

Q: Was there any case that rattled your friendship?

Ginsberg: Well, Nino, I think we were most at loggerheads over the VMI case.
Scalia: Yes.
Ginsberg: Remember that?
Scalia: Yes I do.
Ginsberg: And you had a stirring dissent.
Scalia: It was a great dissent!
Ginsberg: Yeah. You were the only dissenter!
Scalia: Well that’s only because Clarence was recused because he had a son there, didn’t he?
Ginsberg: That’s true. But remember that the chief voted for my judgment.
Scalia: I know.
Ginsberg: Not your dissenting opinion. And we went... I don’t know how many rounds we went.
Scalia: We did, back and forth.
Ginsberg: Yeah. And one time I had a footnote that referred to the University of Virginia at Charlottesville.
Scalia: Oh yes.
Ginsberg: That you had a footnote back saying, “Well, you have to forgive this ignorant person because she doesn’t know that there is no University of Virginia at Charlottesville. There is only a University of Virginia.”
Scalia: And she even talked about the campus of the University of Virginia, my goodness.
Ginsberg: But you know what he did do, he wasn’t finished writing the dissent. It was getting rather late. We were into June already. He gave me what was the penultimate copy of his dissent. He wasn’t ready to circulate it yet. But he came to my chambers and gave it to me and said, “I want to give you as much time as I can to answer this.” So I went off to my Circuit Judicial conference, read the thing on the plane, and it ruined my whole weekend. But that he gave me the extra days to respond, I really appreciated that.
Scalia: I have never gotten angry at Ruth or at any of my colleagues because of the way they voted in an opinion. I mean if you cannot disagree with your colleagues on the law without taking it personally, you ought to get another day job. I mean it’s just not the kind of a job that will allow you to behave that way. So Ruth and I disagree on the law all the time. But it’s never had anything to do with our friendship.
Ginsberg: And we do also have a difference in style. I’d say people might regard my opinions as rather dull, boring. Yours are really jazzy sometimes.
Scalia: Jazzy?

They obviously had deep mutual respect for each other, even though they disagreed on so much.
posted by zarq at 5:27 PM on February 14, 2016 [28 favorites]


I'm not surprised that two people in the same alienating position of power would befriend each other, even with ideological differences (one is rational, the other was a bigoted monster). I'm friends with people in similar positions in life who hold right wing beliefs. Scalia was an asshole, made life demonstrably worse for people not like him, and intellectually bankrupt. Starry eyed stories of friendship aren't doing much to make feel any different about his death.
posted by codacorolla at 5:30 PM on February 14, 2016 [4 favorites]


Poe's Law is a bitch. What'm I looking at here?

It is, but the inclusion of (the late) Nimoy points it firmly (though not decisively) toward satire.
posted by ChurchHatesTucker at 5:32 PM on February 14, 2016


That Nimoy link makes a ton more sense once you realize that Nimoy is the new head of the Illuminati. From the link: "Kirk’s famous fight against Gorn may symbolize humanity’s battle against the Reptilian Illuminati elite."

Enough said.
posted by el io at 5:32 PM on February 14, 2016 [2 favorites]


I'm glad RBG and Scalia got along for her sake, but it really means fuck-all in terms of my relationship with or feelings toward Scalia.
posted by axiom at 5:33 PM on February 14, 2016 [10 favorites]


codacorolla: Starry eyed stories of friendship aren't doing much to make feel any different about his death.

axiom: I'm glad RBG and Scalia got along for her sake, but it really means fuck-all in terms of my relationship with or feelings toward Scalia.

?

No one is trying to convert anyone to the Church of Scalia.
posted by zarq at 5:38 PM on February 14, 2016 [2 favorites]


If there is a Church Of Scalia, you can bet it is going to file a fuckton of religious liberty violation lawsuits.
posted by hippybear at 5:41 PM on February 14, 2016 [4 favorites]


It's also interesting to note that a year after that interview, he did indeed epically lose his temper with his colleagues, in a dissent.
posted by zarq at 5:46 PM on February 14, 2016 [2 favorites]


The more I think about it, the more I think it could be Jane Kelly.

Yes. Her skill with the Arc Sword will be invaluable in our battle against the Advent forces.
posted by Sebmojo at 5:46 PM on February 14, 2016


I remember playing dungeon module SC2, Church Of Scalia back in '83 or '84. The demi-lich boss wiped almost my whole party using a +7 Amulet of Jiggery Pokery. Also, the treasure was all cursed.
posted by Joey Michaels at 5:48 PM on February 14, 2016 [11 favorites]


Pál Erdős famously thought that there was a flaw in the US constitution that made the US susceptible to a legal form of dictatorship.

I thought that was Gödel?
posted by Ralston McTodd at 5:50 PM on February 14, 2016 [3 favorites]


That article is... I know people who approach The Rules like that. I want to tell them that law is a set of human-created conventions that aren't self-executing but I'm afraid of breaking their minds.
posted by tivalasvegas at 6:08 PM on February 14, 2016


The hardest part about SC2 Church of Scalia were all the pit traps that we were expected to defeat by pulling ourselves up by our bootstraps.
posted by vuron at 6:10 PM on February 14, 2016 [10 favorites]


Also if Gödel was panicking about logical problems in the US constitutional structure, it's a good thing he didn't try to emigrate to a Commonwealth nation.
posted by tivalasvegas at 6:14 PM on February 14, 2016 [1 favorite]


That article is... I know people who approach The Rules like that.

Two words: infinite oregano.
posted by Ralston McTodd at 6:32 PM on February 14, 2016 [6 favorites]


happyroach: ""You get Bowie back but it means Scalia comes back with him," said The Devil. I stared into his ice flame eyes. A crow screamed."

That's fine. Undead Bowie can still make music but Undead Scalia's term ended when he died.
posted by Mitheral at 6:43 PM on February 14, 2016 [6 favorites]


Undead Bowie SCOTUS?
posted by ian1977 at 7:18 PM on February 14, 2016 [1 favorite]


With all this (justifiable) hang-wringing about the Republicans blocking any nominee, you know who they'd confirm in a lack-of-heartbeat?

Zombie Scalia.

Too bad President Obama is never gonna nominate him.
posted by fragmede at 7:28 PM on February 14, 2016


I thought that was Gödel?

Yes, you're quite right. I encountered the story in a biography of Erdős, and mis-remembered.
posted by Joe in Australia at 7:39 PM on February 14, 2016


Ctmf, if it's rational and beneficial for Republicans to hold a supreme court nominee hostage indefinitely, should we not also expect them to do the same for cabinet positions? If Clinton or Sanders wins the presidency, why shouldn't the Republicans hamstring the administration by denying them a cabinet entirely?
posted by ryanrs at 7:42 PM on February 14, 2016 [3 favorites]


David Axelrod:
“I have no illusions that your man will nominate someone who shares my orientation,” said Scalia, then in his 23rd year as the court's leading and most provocative conservative voice. “But I hope he sends us someone smart.”

A little taken aback that he was engaging me on the subject, I searched for the right answer, and lamely offered one that signaled my slight discomfort with the topic. “I'm sure he will, Justice Scalia.”

He wasn't done. Leaning forward, as if to share a confidential thought, he tried again.

“Let me put a finer point on it,” the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. “I hope he sends us Elena Kagan.”
It sounds humanizing, even noble at first blush, but when you read the whole piece it begins to feel different. It takes a turn toward sounding like he saw her having enough shared background that she was in his tribe, not to mention already his friendly acquaintance. More chummy and in-group, less noble.
posted by NortonDC at 8:02 PM on February 14, 2016 [3 favorites]


Dear Democrats,
I realize that now more than ever, you want to say to me that I need to vote for So-And-So because the next President will likely decide important Supreme Court appointments. Let me just preemptively say that I remember people telling me that a lot in 2000 and 2004, but little to never in 2008 and 2012. So please, don't jinx it.
posted by ckape at 8:07 PM on February 14, 2016 [3 favorites]


An eight-person Supreme Court is utterly disastrous to the Republicans. It means that a court which has been ever so slightly balanced in their favor for decades is now fairly solidly balanced against them – and in a year when perhaps the most controversial set of cases in living memory is being heard by the court. Within three months or so, we'll have a stack of at least five or six highly contentious cases on issues voters really care about that have been decided on the liberal side, with very narrow margins, obviously because there is no Scalia there to balance things in favor of the conservatives.

Sorta. While these cases may not break the way they want, a 4-4 decision leaves the lower court decision in place and doesn't set any precedent. So these cases that have been discussed won't break their way, but they won't be fully done deals either. They're open to decisions out of other circuits that may give some deference to the way other circuits decided them but aren't bound by them. So they could potentially get another bite at the apple and get a decision they like better, which then the SC would have to take up to fix a conflict of laws.

So if you're gaming this out, you have an existing situation where you don't prevail and which isn't precedent setting. If you let Obama get a nominee through, you have to assume he's more likely than not to get someone in with an ideological bent closer to what he wants and now you still have a loss but it sets precedent. Maybe you win the next election, maybe you don't, but you're still swinging for the chance, right?

I'm not convinced that this is an issue that's terribly galvanizing for the majority of the population, so I'm not sure they have a lot to lose as a party by just refusing to do anything. I think the best prospect for things going through is purple-state senators afraid of having this as an issue that can go against them.
posted by phearlez at 8:15 PM on February 14, 2016 [2 favorites]


Back in the early 90's I used to think: "there's no way this fascist can keep going for long. Really, it's gonna be impeachment or forced resignation or something." And the mofo stayed on the bench until the day he died.
posted by telstar at 8:31 PM on February 14, 2016


> That's fine. Undead Bowie can still make music but Undead Scalia's term ended when he died.

wait are you saying that his vows stated that his term of service lasted until his death and now that he's dead his watch is over and he is once again free to lead his house? because I think that only works if Obama in some way legitimizes his birth and therefore his claim, or else if material evidence is revealed of his true lineage.
posted by You Can't Tip a Buick at 9:07 PM on February 14, 2016 [1 favorite]


basically what I'm saying is that your idea only makes sense if there is some way to retroactively make Antonin Scalia not a bastard, and frankly whatever the laws say I don't think even the trueborn king can do that.
posted by You Can't Tip a Buick at 9:13 PM on February 14, 2016


> Dear Democrats,

Gosh, you'd think that now that we have the youngest Supreme Court in my lifetime, and that Mr. Obama will have appointed three justices (because it seems inconceivable that the Republicans can delay for almost a year something that usually takes a month) that we'd at least have a tiny, tiny break from "the Supreme Court, therefore Democrats".

I guess it's all part of the Democratic Party's grand platform - "Not quite as bad as the Republicans since 1980".
posted by lupus_yonderboy at 9:14 PM on February 14, 2016 [3 favorites]


i blame reid and the dnc for the staggering lack of response to the 50-state-strategy. no message, no ground-game, no money.

on reflection, i further blame bho for being such a weak-sauce, uninspiring liberal. this conundrum is really at the feet of the democratic establishment. republican obstruction? some. weak, comfortable, establishment dems? more.
posted by j_curiouser at 9:30 PM on February 14, 2016 [1 favorite]


Mr. Obama will have appointed three justices

Reagan appointed four during his two terms, one of them being Scalia. People of all political persuasions should have no problem with Obama nominating — let alone appointing — a fourth.
posted by a lungful of dragon at 9:38 PM on February 14, 2016 [9 favorites]


polymodus: When people say that Scalia was harmfully disingenuous, that's a political implication.

I don't have as much of an issue with the politics of Scalia's decisions. It's the naked intellectual dishonesty he displayed in many of his decisions. As it has been stated upthread, Scalia's "originalism" was an exercise in trying to bend the Constitution and Framers' intent to suit the decision he wanted to see in the case. His decisions and dissents were the legal version of 'Saved By the Bell'.


No; the issue is when people assert that X is dishonest, people rely on certain criteria to decide what is honest and what isn't. That's the natural process of making value judgments. But values are political. And the political exists outside of the formally legal (the latter serves to inform the former, i.e. the distinction between necessary vs sufficient). I'm just saying something quite broad about politics, and it was meant to be obvious and intuitive.

Yes, commenters upthread have given various perspectives on Scalia and his legacy; one just has to read some of it to get a sense. But, I'm also book person. And my question was, are there some authors that have talked about Scalia's politics? Did they come to the same conclusions as the commenters here? Ideally, such resources could have been added to the OP as part of the framing. Of course part of the issue is which intellectuals are trustworthy, and that gets very complex. But if the OP had included this info, I wouldn't have asked the question in the first place. Meanwhile, I ended up reading through the NYT front-page article to be informed (as opposed to only hearing commenters' narratives).
posted by polymodus at 9:48 PM on February 14, 2016


The very idea that judgements can be separated and categorized as "value judgements" or "critical judgements" is - to put it mildly - highly problematic. It's Nietzsche filtered very poorly through Max Weber, and plenty of academics (who can be quite adversarial) have had lots to say about why making such a distinction is more difficult than it may appear at first, and why it ultimately leads to a point where you can't have a coherent theory of human action. In fact, that was virtually Max Weber's point with the whole thing, so it's somewhat ironic that people still adduce the "value judgement / critical judgement" dichotomy without a whiff of skepticism. In any case, as a political scientist, I would caution strongly against trying to make distinctions between "values" and critical realism.
posted by koeselitz at 9:57 PM on February 14, 2016 [2 favorites]


I know we've gone over this before, but just to make sure I understand it, please help me make sure I'm grasping this.

The president can make appointments when the Senate is in recess.

At least since the Bush administration, the Senate (when the party of the president and majority party of the Senate are different) has made a point of defining "recess" in a very narrow way. As a result, they are never actually in recess

The Supreme Court legitimized this position in 2014.

Thus, there is no way for Obama - even now - to make a recess appointment. Nor will he be able to legally do it during the August recess.

Is this all correct?

I find no evidence of any recess appointments by Obama since the SCOTUS 2014 ruling.
posted by Joey Michaels at 10:23 PM on February 14, 2016


It's mostly correct, Joey – in the sense that the SC stated in 2014 that Congress, and only Congress, can say when it is or is not in session or on recess.

But – the fact that remains that there are times when Congress must be on recess. Namely: when one Congress no longer exists. That is, between sessions after the Congressional elections.

So theoretically, recess appointments are still 100% possible. And there will be a time this year when Obama can make a recess appointment.

But a recess-appointed Supreme Court nominee would still have to be approved by the next Congress. At best, recess appointment buys a nominee two years before the hammer falls.
posted by koeselitz at 10:33 PM on February 14, 2016 [4 favorites]


Thank you. What is his actual window for recess appointments then?
posted by Joey Michaels at 10:35 PM on February 14, 2016


But which I mean " what dates? "
posted by Joey Michaels at 10:40 PM on February 14, 2016


SCOTUSBlog looked further, said Tie votes will lead to reargument, not affirmance.
posted by Radiophonic Oddity at 11:30 PM on February 14, 2016


Ctmf, if it's rational and beneficial for Republicans to hold a supreme court nominee hostage indefinitely, should we not also expect them to do the same for cabinet positions?

Been there, done that.
posted by SisterHavana at 1:18 AM on February 15, 2016


The very idea that judgements can be separated and categorized as "value judgements" or "critical judgements" is - to put it mildly - highly problematic.

I now kind of understand what you're saying here, but what you are talking about is a specialized topic/jargon in the social sciences. Instead, there's also "value judgment" in the colloquial, explicit sense, specifically when other people or their behaviors are negatively "labeled" (e.g., from K-12 psychology), and also generally when one performs "an assessment of something as good or bad in terms of one's standards or priorities". I understand the phrase in these latter senses, and indeed I myself did express my own priorities, interests, what I was looking for, etc., as per e.g. the 2nd paragraph here. Being value-laden is not really the issue (I hope!).

Hope that's clear, and since that went more technical and specific than I anticipated, I'd be happy to correspond over mail.
posted by polymodus at 1:42 AM on February 15, 2016 [1 favorite]


SCOTUSblog argues: Ninth Circuit Judge Paul Watford is the most likely nominee to replace Antonin Scalia
...
This post substantially revises and supersedes my earlier one on how the political parties will likely approach the Scalia vacancy, in which I had concluded that Ninth Circuit Judge Paul Watford was the most likely nominee. On reflection, I think that Attorney General Loretta Lynch is more likely.

SCOTUSBlog needs to slow down.
posted by zennie at 5:21 AM on February 15, 2016 [2 favorites]


The GOP's Worst Nightmare SCOTUS Nominee, Tino Cuellar.
posted by chris24 at 5:30 AM on February 15, 2016 [7 favorites]


Thank you. What is his actual window for recess appointments then?

There is no window. Even in koeselitz's framing, there does not need to be any time that elapses between the end of one Congress and the beginning of the next.
posted by ROU_Xenophobe at 5:49 AM on February 15, 2016 [1 favorite]


SCOTUSBlog needs to slow down.

I was just thinking the same thing. Saturday night on the way home from work I said to myself, "Remember, self, that a lot of the first analysis of what comes next will be wrong." A bit disappointing to see SCOTUSBlog joining the rush-to-post fray.
posted by mediareport at 6:17 AM on February 15, 2016




Tino Cuellar.

That demographic's already covered. What we don't have is our token WASP appointee.
posted by IndigoJones at 6:49 AM on February 15, 2016


There is no window. Even in koeselitz's framing, there does not need to be any time that elapses between the end of one Congress and the beginning of the next.

So in essence, there is no possibility of a recess appointment so long as the Senate is republican and the president a Democrat (or, potentially, vice versa).
posted by Joey Michaels at 6:51 AM on February 15, 2016


Heh, currently making the rounds on Facebook: Sen. Chuck Schumer said in July 2007 that no George W. Bush nominee to the Supreme Court should be approved, except in extraordinary circumstances, 19 months before a new president was set to be inaugurated.

Yeah, partisan rancor goes both ways. But, to be fair, after Bush put Harriet Miers up in 2005, he made clear that he was going to go super-political before he even tried to go moderate-acceptable.
posted by dis_integration at 6:51 AM on February 15, 2016 [4 favorites]




here come the "Scalia was murdered" conspiracy theories

Yeah, didn't you see, it was Leonard Nimoy.
posted by dis_integration at 7:11 AM on February 15, 2016


Brandon Blatcher: "Heh, currently making the rounds on Facebook: Sen. Chuck Schumer said in July 2007 that no George W. Bush nominee to the Supreme Court should be approved, except in extraordinary circumstances, 19 months before a new president was set to be inaugurated"

I'm pretty sure the death of a sitting Supreme Court justice counts as an extraordinary circumstance.
posted by Rhaomi at 7:23 AM on February 15, 2016 [1 favorite]


Goodwin Liu gets on before Cuellar, in theory. In practice and in the current climate, either of then would be a sacrificial offering to be followed by a centrist pick.

Liu's already been through that once, and Cuellar's no dummy.
posted by snuffleupagus at 7:28 AM on February 15, 2016


I'm pretty sure the death of a sitting Supreme Court justice counts as an extraordinary circumstance.

Not in the context of a hypothetical vacancy on the Court in the last year of a Presidential term, which would only come about by death or retirement.

Or impeachment, which would be extraordinary.
posted by snuffleupagus at 7:36 AM on February 15, 2016


... Though I wouldn't be surprised if Schumer happened to think that this particular vacancy was an extraordinary circumstance.
posted by Going To Maine at 7:41 AM on February 15, 2016


Schumer was wrong then, just as the Republicans are wrong now.

Although there is a slight difference in the Senate Majority Leader making it an official position, as opposed to a single Senator speaking to a group.
posted by Brandon Blatcher at 8:14 AM on February 15, 2016 [11 favorites]


Schumer was wrong then, just as the Republicans are wrong now.

I love these moments of partisan musical chairs where the parties exchange positions and then claim to hold them as sacred unshakeable values.
posted by Drinky Die at 9:44 AM on February 15, 2016 [7 favorites]


I love these moments of partisan musical chairs where the parties exchange positions and then claim to hold them as sacred unshakeable values.

Same here. I love when a party wants the filibuster rule gone until they are no longer the ones in power. That said, some of us are consistent in calling a shitty thing a shitty thing.
posted by cjorgensen at 9:57 AM on February 15, 2016 [8 favorites]


The filibuster is a messed up issue, because the Senate is messed up as a concept because Wyoming gets as many votes as California. A Democratic filibuster can often be said to be speaking for the majority of the people in the country even though it is coming from a minority of Senators. So, it's more understandable to me that they play these games but it's still a game.
posted by Drinky Die at 10:06 AM on February 15, 2016 [3 favorites]




The filibuster is a messed up issue, because the Senate is messed up as a concept because Wyoming gets as many votes as California.

The Senate’s being predicated on the equal representation of the states is kind of fundamental to the country, and I’m not at all convinced that the filibuster was introduced because an under-represented popular majority was being ridden roughshod-over by a minority group with more senators.
posted by Going To Maine at 10:31 AM on February 15, 2016 [2 favorites]


> Heh, currently making the rounds on Facebook

Also going around on Facebook: President Reagan on "Constitutional obligation"
posted by cjorgensen at 10:33 AM on February 15, 2016


The Senate’s being predicated on the equal representation of the states is kind of fundamental to the country

Yes, it was gerrymandering by design.
posted by Drinky Die at 10:37 AM on February 15, 2016 [1 favorite]


The little states like Delaware and Rhode Island would have never ratified the constitution if the Senate were proportional to population. They didn't want to get totally run over by states like Virginia or Pennsylvania and wanted the Senate to be able to put some brakes on the process.
posted by octothorpe at 10:49 AM on February 15, 2016 [1 favorite]


So, I've just gotten all the way through the thread, and I wanted to thank everyone who said things much more graciously than I would have done. Scalia's passing will prove, one way or the other, to be a pivot point in history.
posted by SecretAgentSockpuppet at 11:17 AM on February 15, 2016 [3 favorites]


I've been rereading the US constitution with that in mind and I noticed something else that's interesting: the President can only be impeached by the Senate, presided over by the Chief Justice. The President appoints the Chief Justice. Implicitly, if the Chief Justice dies or otherwise loses office then the President cannot be impeached.

28 U.S. Code § 3 - Vacancy in office of Chief Justice; disability:
Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.
posted by Etrigan at 11:34 AM on February 15, 2016 [2 favorites]


I get that Constitution allows either side to delay/hold off any justice appointment and it's technically fair game, but can someone explain the "we've skewed the rules so Congress is never in recess, even though (wink-wink) we totally are!" stuff? I guess the Supreme Court ruled on it, but it seems to remove an important balance from the system, namely: "Okay, you don't want to work with the President, but that means he gets to recess appoint someone for two years, so delay at peril to your own agenda." If the Founding Fathers intended Congress to make that balance moot, why would they have included it in the Constitution? Did they not forsee this? Has it ever been a problem before in history?
posted by bluecore at 11:36 AM on February 15, 2016 [6 favorites]


can someone explain the "we've skewed the rules so Congress is never in recess, even though (wink-wink) we totally are!" stuff?

The Senate is only in recess when the Senate says it's in recess. The President doesn't get to just decide the Senate is in recess when they say they aren't. If he had the power to do that, he could do that in the wee hours of pretty much any night; the Senate will be just as absent from its chambers then as it will be in its "recesses."

What the founding fathers wanted or didn't want about recess appointments isn't relevant to the modern world. They had recess appointments because people die and quit, and in 1787 this might happen months before the Senate was due to come back into session, and even if the President called a special session to consider the nomination it might well take a month or two for that to happen. If someone dies or quits nowadays, the Senate is probably in session anyway, and even if they're not they can convene in a day or so. The problem recess appointments were meant to solve no longer exists and really hasn't existed in any meaningful way since the telegraph was invented.
posted by ROU_Xenophobe at 11:54 AM on February 15, 2016 [8 favorites]


That wasn't how it was used when the founders were alive.

When Congress was in recess these guys went home. And they didn't have email and text messaging, so it took a long time to get anything done communication-wise. So if there was a recess the work still needed done, so there could be an appointment.

Since Congress sets its own rules on what constitutes "in session" they can run down the hall, gavel in gavel out and they are in session.
posted by cjorgensen at 11:55 AM on February 15, 2016


Since Congress sets its own rules...

Yes, that always works out so well.
posted by Brandon Blatcher at 11:59 AM on February 15, 2016 [1 favorite]


John Oliver did a great piece on this last night, complete with clip of Mitch McConnell on the Senate floor making claims that judicial nominations should be considered and confirmed. Of course, that was in 2008, the final year of George W. Bush's term, and Democrats controlled the Senate.
posted by zakur at 12:04 PM on February 15, 2016 [11 favorites]


I get that Constitution allows either side to delay/hold off any justice appointment and it's technically fair game, but can someone explain the "we've skewed the rules so Congress is never in recess, even though (wink-wink) we totally are!" stuff? I guess the Supreme Court ruled on it, but it seems to remove an important balance from the system, namely: "Okay, you don't want to work with the President, but that means he gets to recess appoint someone for two years, so delay at peril to your own agenda." If the Founding Fathers intended Congress to make that balance moot, why would they have included it in the Constitution? Did they not forsee this? Has it ever been a problem before in history?

Yes.

Congress takes scheduled long breaks in the Summer and Winter. They also take shorter breaks throughout the year. To do this, they pass joint resolutions to declare adjournments.

But, a pro forma session meeting can be called when they're supposed to be on break, in which no legislative business is on the agenda. The officially stated reason for those sessions is to comply with Article I, Section 5 of the Constitution, which prohibits either Congressional chamber from adjourning for more than three consecutive calendar days without the consent of the other chamber. So pro forma sessions can and do serve a specific purpose.

Except theoretically, they can also prevent the President from filing recess appointments, which is his right under Article II, Section 2. Recess appointments get to assume their roles without Senate approval. That body must confirm or reject them before the end of the next session of Congress. If the Senate meets in pro forma sessions, they don't adjourn. If Congress never adjourns, the President can't make a recess appointment. That little little wrench in the works was probably unanticipated by the people who wrote the Constitution. It's a logical loophole.

Back in 2012, Republicans tried to prevent President Obama from making recess appointments. He ignored them, did it anyway, and his appointees were confirmed by Dems during the next Congressional session.
posted by zarq at 12:06 PM on February 15, 2016


Came to ask question about impeachment for McConnel, found that EMcG already answered it. The state of our MeFi is strong.
posted by benito.strauss at 12:09 PM on February 15, 2016 [1 favorite]


If Congress never adjourns, the President can't make a recess appointment. That little little wrench in the works was probably unanticipated by the people who wrote the Constitution. It's a logical loophole.

It's not even a loophole. It's a scenario entirely unlike 1787, because it doesn't take weeks to reassemble the Congress from their homes for a session. Recess appointments, however attractive the idea is right now, was a mechanism for an outdated era.
posted by chimaera at 12:14 PM on February 15, 2016 [4 favorites]


a mechanism for an outdated era

That describes much of Congress. If they'd been doing their jobs and confirming nominees instead of just sitting on them endlessly, they wouldn't have forced the recess appointments in the first place.

L: "We're not going to do our jobs."
E: "Oh yeah? How 'bout I do your job for you using this existing rule."
L: "We're so serious about not doing our jobs we'll invent a way to keep you from making us."
E: "Here, have an executive order."
L: "You can't use that rule! Only our guy can use that rule!"
E: "Fight me."
posted by fedward at 12:24 PM on February 15, 2016 [5 favorites]


cjorgensen: “When Congress was in recess these guys went home. And they didn't have email and text messaging, so it took a long time to get anything done communication-wise. So if there was a recess the work still needed done, so there could be an appointment.”

Yes – and recess appointments have been a fact since the very beginning of the United States. A sad and tragic yet very intriguing instance of this was the appointment of John Rutledge as the Chief Justice of the Supreme Court, which has been mentioned several times in this thread.

John Rutledge was first appointed to the Supreme Court as an associate justice by George Washington in 1789 (while Congress was in session, and he was confirmed handily). But he resigned from the Supreme Court quite promptly, in 1791, before ever hearing a case. It should be pointed out that the Supreme Court's status in the government was then quite ambiguous, and it wasn't nearly as strong as it became in the next half-century thanks to the chief justiceship of the great John Marshall; at that time being an associate justice in the Supreme Court seemed a rather unimportant post, particularly since a lot of the more consequential things were being decided in the state courts. So John Rutledge resigned from the Supreme Court in 1791 to become a chief justice of the court of common pleas and sessions in South Carolina.

But then, at the end of June 1975, John Jay resigned as Chief Justice of the Supreme Court to take up his post (to which he had recently been elected) as governor of New York. Jay had recently negotiated a pivotal treaty with Britain, the treaty which resolved all issues connected to the American Revolution whilst largely cutting the US's ties to France, which soon became known as the Jay Treaty. Congress was in recess, so George Washington made the very first recess appointment and appointed John Rutledge as Chief Justice of the Supreme Court.

Which turned out badly. Two weeks after he took his post, John Rutledge, who happened to be among those who, with Jefferson, thought the Jay Treaty was a complete violation of all the ideals which the United States had been founded on, gave a speech in which he actually said he wished the President would die rather than sign the Jay Treaty, and that he preferred war to it. This was, as could be predicted, vastly an unpopular thing to say, even among the Jeffersonians who were against the treaty. By the time Congress came back in session six months later and was set to vote on his confirmation, rumors about his alcoholism and mental decline were running rampant, and he became the only recess appointment to the Supreme Court ever denied, and the first sitting Supreme Court justice ever removed from office against his will. He saw this coming, and just before the removal was effected he resigned.

He went back to Charleston and tried to kill himself by jumping off a wharf. It didn't work, but he only lived five more years. All in all, it was a sad situation.

If some sort of "intent" or "precedence" can be wrung from all that, well, there it is.
posted by koeselitz at 12:30 PM on February 15, 2016 [11 favorites]


“Let me put a finer point on it,” the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. “I hope he sends us Elena Kagan.”

I wonder who, if anyone, she's pushing.

You need intellectual variety there if for no other reason than to force the justices to up their games. Otherwise it becomes an echo chamber.
posted by IndigoJones at 12:34 PM on February 15, 2016 [3 favorites]


I wonder if it is true that the recess rule was solely a necessary rule when communication lines were long or if it was intended as bluecore said to act as a whip on getting business done.

I find all this very fascinating in a RAI vs RAW sort of way. Table top gaming has this problem writ large where people a step or two removed from the process are trying to use a rule base and some of those players are really good at piling things together to get an unexpected outcome. And then it is up to the game runner or the other players to judge on the validity of the interpretation. One of the things that goes into that is asking why a certain rule was written the way it was if the authors didn't intend for a certain action.

Bringing it around to the debate at hand I wonder why the rule allowed for recess appointments to continue sitting until the dissolution of the next Senate. Several other expiry dates could have been chosen so the expiry is maybe a significant signaler; or, it may not be.

Still I can't imagine the writers and certifiers of the constitution ever intended for there not to be appointments for years on end considering they allowed for appointments during recesses of much shorter periods. The RAI probably expected a certain amount of cooperation between the branches of government that is sadly lacking now.
posted by Mitheral at 12:47 PM on February 15, 2016 [1 favorite]




I wonder if it is true that the recess rule was solely a necessary rule when communication lines were long or if it was intended as bluecore said to act as a whip on getting business done.

I believe it was much more the former. In the 1700s, they weren't all that far away from a time when the UK Parliament would simply not meet for years at a time.
posted by chimaera at 12:51 PM on February 15, 2016 [1 favorite]


It's a scenario entirely unlike 1787, because it doesn't take weeks to reassemble the Congress from their homes for a session. Recess appointments, however attractive the idea is right now, was a mechanism for an outdated era.

Right, but it also indicates a sense that appointments are important and time-sensitive. If it can't wait weeks to reassemble Congress from their homes, can it wait a year because Congress can't be assed to do anything?

As written, yes, but I think there should be some mechanism to get a person in the job temporarily. I mean, nothing's stopping the President from telling the senior non-appointee in an agency they're "acting" agency head for a while, but he can't really rate up a clerk to Justice pro tem. On the other hand, the court can function with 8.
posted by ctmf at 1:27 PM on February 15, 2016 [1 favorite]






Scalia/Ginsburg : American comic opera in one act

Like... the "/" really needs to not be there.
posted by duffell at 3:36 PM on February 15, 2016 [7 favorites]





Justice Antonin Scalia Was a Bigoted Racist, Nothing More


...As one who spares no quarter for powerful racists whose decisions impact people who look, pray or think as I do, I refuse to mourn Scalia’s death. I did not break out with “Ding-Dong the Wicked Witch (or Warlock) is Dead” like the Emerald City Munchkins in the Wizard of Oz. But when I heard the news, my mind-set was actually more akin to one of my favorite quips from the 90s hit cartoon Beavis and Butthead, where Butthead, believing his pal Beavis to be dead, eulogizes him by simply saying “we have not come here to bury Beavis, but, uh, later dude…”

Charles E. "Chuck" Hobbs II, J.D.
posted by Cookiebastard at 4:03 PM on February 15, 2016 [3 favorites]


Scalia was found dead in his room at a luxury hunting resort in the state’s Big Bend region by the resort’s owner. It took hours for authorities to find a justice of the peace. When they did, Presidio County Judge Cinderela Guevara pronounced Scalia dead of natural causes without seeing the body — which is permissible under Texas law — and without ordering an autopsy.

On Sunday, the U.S. Marshals Service, which provides security for Supreme Court justices, said that Scalia had declined a security detail while at the ranch, so marshals were not present when he died. When the marshals were notified, deputy marshals from the Western District of Texas went to the scene, the service said in a statement.

Guevara said she declared Scalia dead based on information from law enforcement officials on the scene, who assured her that “there were no signs of foul play.” She also spoke to Scalia’s doctor,
Yeah the conspiracy theories are not just going to go away. When I read the story last night several details were omitted, such as that the County Judge questioned law enforcement officers on the scene and that she talked to Scalia's physician so I was baffled how she could state that he was dead of natural causes over the phone. The first version of the story made it seem like she was trusting the owner of the lodge to verify there was "no foul play."

My guess is that the talk with Scalia's physician sealed the deal but who knows? I wonder if she will end up in front of congress herself, defending the reasons for her decision. (And I'm tickled that the judge's first name is Cinderela.)

It doesn't help that the family has decided that there will be no autopsy either. By "help" I mean put an end to conspiracy theory discussions that Scalia was murdered by ...Obama's henchmen, I guess. So it looks like we will never know for sure what caused him to die other than "old age."
posted by Secret Life of Gravy at 4:28 PM on February 15, 2016


Scalia's physician was traveling with him? Sounds like he wasn't as hale as everyone said.
posted by ChurchHatesTucker at 4:35 PM on February 15, 2016 [1 favorite]


I don't understand why Obama would want to be a SCJ...

It's a dream job for someone like Obama, who graduated from Harvard Law School and used to teach constitutional law at one of the top law schools.

What else should Obama want to do after being president? What other job would be as important or interesting?

However, I can't imagine he'd be confirmed.
posted by John Cohen at 4:36 PM on February 15, 2016


Did Scalia Really Have an Outsized Influence on the Court?

I think Scalia’s “dominance” of the Court has been vastly overrated. When has he ever persuaded anyone who didn’t already agree with him? I don’t know whether Scalia’s insulting language caused it, but O’Connor moved further from Scalia, not closer, over time. From Casey to King, his Republican colleagues have never let the possibility of one of his BLISTERING dissents stop them from doing something they wanted to do.
posted by great_radio at 4:38 PM on February 15, 2016 [1 favorite]


Scalia's physician was traveling with him? Sounds like he wasn't as hale as everyone said.

No, the judge talked to him on the phone. Scalia traveled with a friend, but not his doctor. I believe they had just arrived at the ranch the day before. He went to the get-together that night (there were a number of other guests staying) and left early to go to bed at 9:00 p.m. The ranch is very remote and the trip to get there was said to be very tiring. He was supposed to get up at 8:00 a.m. and go quail hunting but when he didn't come down to breakfast, the rancher/guide entered Scalia's bedroom at 11:00 a.m. I think the trip was probably too strenuous for him.
posted by Secret Life of Gravy at 4:46 PM on February 15, 2016 [3 favorites]


What else should Obama want to do after being president? What other job would be as important or interesting?

Instead of Associate Justice of the U.S. Supreme Court? Chief Justice. It just seems improper (imo) to slide from head of the executive branch to most junior justice of the nine on the Court. It's a demotion. It would be different, if, like Taft, he went from head of one branch to head of another, but you can't ask Chief Justice Roberts to step aside so President Obama can take over.
posted by cdefgfeadgagfe at 5:47 PM on February 15, 2016


Early news reports right after his death said that scalia said he wasn't feeling well and so he was going to bed early. fwiw. haven't heard that mentioned again.

the hunting ranch owner also said in his original interviews that he found scalia cold to the touch with a pillow over his face and looking peaceful. he also said that scalia's bed and room looked normal.
posted by futz at 5:52 PM on February 15, 2016


He was 79. Do we really need a Royal Inquest?
posted by T.D. Strange at 6:05 PM on February 15, 2016 [3 favorites]


What else should Obama want to do after being president? What other job would be as important or interesting?


Backup dancer for Beyonce? First Gentleman to President Michelle Obama?
posted by poffin boffin at 6:07 PM on February 15, 2016 [11 favorites]


great choices.
posted by zutalors! at 6:34 PM on February 15, 2016


With a pillow over his face. Right. All the guests were staying for free, someone asked the owner to invite Scalia. The owner checked in on him, as if his statements were unimpeachable fact.

It is not the John Poindexter from Watergate, is it?
posted by Oyéah at 6:49 PM on February 15, 2016


A man died with a pillow over his face. He's an important public official and no autopsy is performed. Then even though he is an outspoken opponent of Vatican II and an ultra conservative Catholic; his body is quickly cremated per his will.

Sounds to me like someone committed euthanasia and didn't want the world to know about it.
posted by humanfont at 6:56 PM on February 15, 2016 [1 favorite]


It is not the John Poindexter from Iran-Contra, I think you mean. But no, not him.
posted by mwhybark at 7:03 PM on February 15, 2016


Are you guys kidding? A rather more than husky 80 year old guy dies in his sleep and it's now an episode of Colombo?
posted by Justinian at 7:06 PM on February 15, 2016 [7 favorites]


Are you guys kidding? A rather more than husky 80 year old guy dies in his sleep and it's now an episode of Colombo?

How the hell can it be an episode of Columbo? We haven't been told who did it or how they've been caught! This would be more like an episode of Quincy.
posted by Talez at 7:14 PM on February 15, 2016 [10 favorites]


I'm sure you're right Justinian. Just one more thing...
posted by nubs at 7:14 PM on February 15, 2016 [5 favorites]


I think it was most likely a personal thing, some grudge a man had against Antonin that went back long before he was a Supreme Court Justice, long before he was even a lawyer, from when they were kids on the south side of Baltimore. Now, perhaps he works as a menial ranch hand, having decided to put all that behind him and try and salvage some dignity from his life, when his former tormentor happens to visit that very ranch for a quail hunt. What are the chances, right? It's like God placed that pillow in his hands.
posted by Flashman at 7:16 PM on February 15, 2016 [14 favorites]


Sounds to me like someone committed euthanasia and didn't want the world to know about it.

I hope this is Poe's Law in action, because this is into moon landing denial territory otherwise. Let's call Fox Mulder, I'm sure he'll clear all this up right quick.
posted by T.D. Strange at 7:16 PM on February 15, 2016 [1 favorite]


Do people usually sleep with a pillow over their face? All this time I've been sleeping with the pillow under my head, not over my face. Have I been wrong this whole time?
posted by humanfont at 7:29 PM on February 15, 2016 [2 favorites]


I've slept with a pillow over if there is light leaking in from someplace.
posted by Mitheral at 7:30 PM on February 15, 2016 [2 favorites]


I do too, for noise and light.
posted by Johnny Wallflower at 7:36 PM on February 15, 2016 [2 favorites]


I sleep with a pillow under my head and if I am found dead with a pillow on top of my head this comment will serve as testimony that Barack Obama killed me because I threatened to reveal his s njrrrrrrrrrrrn b
posted by tivalasvegas at 7:39 PM on February 15, 2016 [27 favorites]


I've been following this thread since it began and I missed the part about the pillow. Links, please?
posted by ambulocetus at 7:42 PM on February 15, 2016


It could have been one of those pillows made with Swedish murdery foam.
posted by Flashman at 7:42 PM on February 15, 2016 [6 favorites]


Here you go.
posted by Justinian at 7:43 PM on February 15, 2016 [1 favorite]


What else should Obama want to do after being president? What other job would be as important or interesting?
...
Backup dancer for Beyonce? First Gentleman to President Michelle Obama?


Brain core for MURDERBOT-ONE
Leader of Deadly Vipers Assassination Squad
CHUD hunter
Top breeder of champion vallhunds and also still MURDERBOT-ONE but with moar puppeez
posted by ROU_Xenophobe at 7:49 PM on February 15, 2016 [3 favorites]


Duke of Earl.
posted by ardgedee at 8:02 PM on February 15, 2016 [1 favorite]


Do people usually sleep with a pillow over their face?

Some people usually do.
posted by ChurchHatesTucker at 8:06 PM on February 15, 2016 [2 favorites]


I sometimes do.
posted by mazola at 8:17 PM on February 15, 2016 [2 favorites]


But that's just to trick potential murderers into thinking I've aready been murdered.
posted by mazola at 8:18 PM on February 15, 2016 [25 favorites]


Guess what, other sources say this John Poindexter, owner of the ranch is the former head of the NSA, and was involved in the Iran Contra affair.

Scalia said no to the coup, or said no to the big plot that will place Paul Ryan in the oval office before the election. Yeah they needed a legal opinion, and a tacit endorsement, they didn't get it.

Not meaning to annoy with my predictive text.
posted by Oyéah at 8:26 PM on February 15, 2016 [1 favorite]


Nevermind. Not the same guy. Sorry.
posted by Oyéah at 8:42 PM on February 15, 2016


I liked the plot anyway.
posted by rhizome at 8:46 PM on February 15, 2016 [1 favorite]


Can metafilter not be the place where we entertain bullshit speculative conspiracy theories in threads that are about actual substantive and historically important events?
posted by skewed at 8:49 PM on February 15, 2016 [18 favorites]


I don't think we're entertaining them so much as being entertained by them.
posted by tivalasvegas at 8:50 PM on February 15, 2016 [16 favorites]


Not meaning to annoy with my predictive text.

I hear that NASA faked the moon landing with their contrails.
posted by Justinian at 9:02 PM on February 15, 2016


Can metafilter not be the place...

And I don't want to see any recipes posted either!

Now be quiet and go to sleep.
posted by RolandOfEld at 9:02 PM on February 15, 2016


Recipes are real things, they just aren't always on topic. I like recipes.

I'd like less of the stuff that's on topic but not real.
posted by benito.strauss at 9:13 PM on February 15, 2016


I'd settle for less of the stuff that's on topic being surreal.
posted by tivalasvegas at 9:34 PM on February 15, 2016 [2 favorites]


Anita Hill is a law professor at Brandeis.

Appealing, but (a) her specialty is elsewhere and (b) she would have to endure misogynist attacks like you'd never believe if she were to take it.


It would be worth it. Totally.

I've been following this thread since it began and I missed the part about the pillow. Links, please?
When Poindexter tried to awaken Scalia about 8:30 the next morning, the judge's door was locked and he did not answer. Three hours later, Poindexter returned after an outing, with a friend of Scalia who had come from Washington with him.

"We discovered the judge in bed, a pillow over his head. His bed clothes were unwrinkled," said Poindexter.

Cibolo Creek Ranch owner recalls Scalia’s last hours in Texas
(San Antonio Express-News)
posted by mrgrimm at 10:11 PM on February 15, 2016


Team Sleep-With-Pillow-Over-Face for life. It reduces light spill, dampens sound, and prevents the hungry cat from gently tapping me on the face again and again with all ten front claws at 5:30 am.
posted by Joey Michaels at 10:22 PM on February 15, 2016 [5 favorites]


This is not the best plan, but it might at least change the way the Republicans weigh the costs and benefits of obstruction vs. its political costs.

How Obama Could Win Supreme Court Battle — Even If Republicans Take the White House:
If Democrats win back the Senate and lose the White House in November, they would control both branches of government for about two weeks before Obama leaves office. That overlap in the transition of power is set in stone. The Constitution mandates the new Congress begins work on January 3, while President Obama stays in power until January 20.

So if Democrats take back the Senate, President Obama could send a Supreme Court nominee to that new Democratic majority, which would have 17 days to change the filibuster rules and ram in a vote before a new President takes power.
posted by dialetheia at 10:28 PM on February 15, 2016 [2 favorites]


"So if Democrats take back the Senate, President Obama could send a Supreme Court nominee to that new Democratic majority, which would have 17 days to change the filibuster rules and ram in a vote before a new President takes power."

Oh man, that would be something to behold.
posted by homunculus at 10:50 PM on February 15, 2016


Sure, but the Senate doesn't move that fast.
posted by Brandon Blatcher at 11:54 PM on February 15, 2016 [1 favorite]


fwiw, I wasn't speculating that he was smothered. Blanket, t shirt, towel, pillow have all been used on my face for comfort or avoidance of sunlight.
posted by futz at 1:48 AM on February 16, 2016 [1 favorite]


I was at a charity ball when the news broke. My friend and I immediately headed to the dance floor to figuratively dance on Scalia's grave. I will never be able to hear I've Gotta Feelin without remembering that joyous moment.

I'm OK with being a bad person.
posted by DarlingBri at 3:10 AM on February 16, 2016 [16 favorites]


Planning for a scenario where the Democrats win back the Senate but not the White House is idiotic, show me the electoral map where that happens.
posted by T.D. Strange at 6:05 AM on February 16, 2016 [3 favorites]


Maybe in one of those goofy three or four candidate scenarios. Huge turnout for dems, but Presidential vote gets split. But yeah, that scenario is just interesting trivia.
posted by Drinky Die at 6:47 AM on February 16, 2016


G.O.P. Warns Obama Against Doing Anything for Next Three Hundred and Forty Days

Man, I used to believe that nothing on earth could get out the moderate, MOR, progressive, and/or left-leaning vote more than the specter of Sarah Palin did, but between this shit and Trump. . . .
posted by FelliniBlank at 7:55 AM on February 16, 2016 [1 favorite]


Planning for a scenario where the Democrats win back the Senate but not the White House is idiotic, show me the electoral map where that happens.

A general election involving Trump + Sanders + Michael Bloomberg as a third-party candidate opens that possibility. There are a lot of what-ifs there, but it's not completely idiotic.
posted by toxic at 8:09 AM on February 16, 2016 [1 favorite]


I have decided that the best way to fill the SCOTUS vacancy is by lottery. Specifically, the Shirley Jackson type of lottery.

[Government Powerball Agent] *reads ball plucked from ginormous tumbler* The new SCOTUS judge will be from the family of... Marvin K. Tompkins of Des Moines, Iowa!

[Marvin] AW SON OF A BITCH!

"It isn't right, it isn't fair," Mrs. Tompkins cried, and then the black robes were upon her.
posted by delfin at 8:34 AM on February 16, 2016 [7 favorites]


I've thought about that for President. Total lottery. All money goes toward education. Buy as many tickets as you like. Win/win!
posted by cjorgensen at 8:50 AM on February 16, 2016


"All money goes towards education" in politics means "we subtract that much from the normal education funding and use that money elsewhere, leaving the education budget exactly as before!"

Money, the ultimate fungible good!
posted by introp at 9:10 AM on February 16, 2016 [4 favorites]


Carl Diggler at Cafe.com: "MY TRIBUTE TO SCALIA: Put Aside Your Petty Opinions About Equality & Enjoy This Wonderful Wit"
This Saturday, a giant fell. Supreme Court Justice Antonin Scalia was found dead at a resort in West Texas. In a better world, folks would come from across the aisle to mourn the loss of a respected political figure. After all, we in the Beltway may not agree on everything, but after the gavels are set down for the day, those little letters at the end of our names, our political affiliations, our possible illicit donations from Georgian lobbyists, they all melt away. When we’re toasting beers, we’re friends first, colleagues second, and our ideologies come last.

Unfortunately, this world died long ago. When I looked at my Twitter timeline, it was filled with rancorous partisans referring to a Justice of the Supreme Court who was personally appointed by the President of the United States as a “piss hog.” Some of my friends on the extreme left were celebrating his death. Don’t get me wrong: it’s alright to disagree on things on principle. For instance, some of us think the airstrike on the Doctors Without Borders hospital in Kunduz last year didn’t go far enough, while some of us thought it was adequate. Some of us think that welfare recipients’ children should be outfitted with tracking tags, and some of us just want to drug test their parents. But I’d like to think none of my friends would ever stoop so low as to politicize the death of a public servant.
posted by Rustic Etruscan at 9:26 AM on February 16, 2016 [5 favorites]


Sure, he may have hated gays and helped legitimize oligarchy in America, but he was a lovable little scamp with a tremendous singing voice!
posted by entropicamericana at 9:35 AM on February 16, 2016 [5 favorites]




cjorgensen: "I've thought about that for President. Total lottery. All money goes toward education. Buy as many tickets as you like. Win/win!"

Oh, now I *know* there was a short story like this! Was it in Omni, maybe? I keep thinking of Asimov's "Franchise" but that's not it.
posted by Chrysostom at 9:53 AM on February 16, 2016


I think it's called The Black Mirror Games
posted by tivalasvegas at 10:00 AM on February 16, 2016


Are we sure he didn't just strangle in his bed clothes?
posted by clawsoon at 10:09 AM on February 16, 2016


Trump: ‘Pretty Unusual’ Scalia Was Found With ‘Pillow on His Face’

Now the GOP frontrunner is talking about it too...
posted by DynamiteToast at 10:15 AM on February 16, 2016


Scott Lemieux: "Norms of Senate deference were sustainable in part because party coalitions were loose and in part because the Supreme Court generally produced outcomes that were acceptable to most political elites. Even as elites have become more polarized, the Court has given enough wins to both sides that as long as someone like Kennedy remained the median vote an opposition Senate would confirm a replacement. Scalia’s death ends this era, and everyone knows it. It’s a serious problem."
posted by T.D. Strange at 10:21 AM on February 16, 2016 [2 favorites]




I've slept with a pillow over if there is light leaking in from someplace.

Hopefully, it was a big, gay rainbow.

A big, gay rainbow was too much for him. A pillow wasn't enough to overcome the power of the big, gay rainbow. Reciting his gay marriage dissent where he had to clarify that he wasn't gay, but all man -- not even that was enough. No, the power of the big, gay rainbow was so strong that he needed to escape this earthly existence altogether.
posted by Capt. Renault at 10:22 AM on February 16, 2016 [2 favorites]


Now the GOP frontrunner is talking about it too...

Oh god, of course he is. Please tell me this isn't going to become a Thing.
posted by tivalasvegas at 10:25 AM on February 16, 2016 [2 favorites]


But seriously, can't we all just assume that the pillow on the face was some kind of sex play gone wrong? It's the simplest, most humiliating explanation, and we could recycle all sorts of Michael Hutchence jokes.
posted by Capt. Renault at 10:25 AM on February 16, 2016 [4 favorites]




It's the simplest, most humiliating explanation, and we could recycle all sorts of Michael Hutchence jokes.

Eh, Hutchence had reasons, I'll call it more of a Carradine Syndrome death. This is an affliction pretty low on a spectrum that has Entwistle's Disease at the extreme end (as of 2/2016). Would that national healthcare focussed on that for a change.
posted by rhizome at 10:54 AM on February 16, 2016


ruh-roh, ben carson better start employing the mazola anti-murdery strategems right quick
posted by tivalasvegas at 11:53 AM on February 16, 2016


He probabaly just died. The Obama conspiracy is the least likely conspiracy. Far more plausible would be he decided to commit euthanasia. Obviously this act would tarnish his pro-life legacy. So he travels to a remote place where his close friend will be able to supervise the end of life arrangements. A place where you can have a death certificate phoned in. He takes an overdose of his sleeping and pain pills; along with a glass or two of alcohol. Puts the pillow over his face to further lower his blood o2 levels. Never wakes up. His friend knocks on the door in the morning, no response as expected. Comes back 3 hours later to make sure there has been enough time (make sure he's good and dead). Friend ensures there is no autopsy and the funeral home cremates before anyone can second guess or run a tox screen.
posted by humanfont at 12:26 PM on February 16, 2016 [1 favorite]


Friend ensures there is no autopsy and the funeral home cremates before anyone can second guess or run a tox screen.

Sounds good, except that "[Scalia] will lie in repose at the Supreme Court on Friday from 10:30 a.m. to 8 p.m."
posted by tivalasvegas at 12:32 PM on February 16, 2016 [1 favorite]


Damnit, don't screw up human font's master plan to have Scalia have euthanized himself!
posted by cjorgensen at 12:35 PM on February 16, 2016


Well obviously the "body" of "Scalia" that will lie in state is a wax figure. They just want us to believe he euthanized himself but I'm not falling for that bullshit
posted by tivalasvegas at 12:47 PM on February 16, 2016


It's an opportunity for Nick Cage to sneak in and steal a blood sample.
posted by phearlez at 12:59 PM on February 16, 2016 [1 favorite]


Yeah, the cremation thing was a tongue-in-cheek reference to his anti-abortion stance, not actual reporting. Scalia's body was taken from the ranch to a funeral home in El Paso to be embalmed and I presume from there it was flown back to D.C. to lie in repose.
posted by devinemissk at 1:00 PM on February 16, 2016


And I don't want to see any recipes posted either!

Oh, that reminds me- I forgot to post KatherynT's recipe for Scalia's Tears. I kind of lost count of how many I had over the weekend.

Scalia' Tears

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.
posted by happyroach at 1:04 PM on February 16, 2016 [11 favorites]


Well obviously the "body" of "Scalia" that will lie in state is a wax figure.

If that was the case, you could really screw with people with some theatrics and some strategic application of heat...

Breaking: At approximately 8:30PM, there were multiple claims of hearing a booming voice shout "I shall rise again!" as the body of former justice Scalia appeared to melt and drain through the floorboards. Majority leader Mitch McConnell immediately released a statement claiming that no replacement appointment should ever take place as Scalia is now a permanent fixture in the Supreme Court, and his voice and will shall be channeled via Justice Thomas until he decides another human host is appropriate
posted by MysticMCJ at 1:10 PM on February 16, 2016 [5 favorites]


Can vermouth be substituted for the Fernet Branca?
posted by Artw at 1:16 PM on February 16, 2016 [1 favorite]


I find that the bitterness of the Fernet Branca, aside from being symbolically appropriate, adds a lot of complexity to the taste. Vermouth's sweetness world kind of Ron the drink, and I say this as someone who normally doesn't like non-sweet cocktails.
posted by happyroach at 1:34 PM on February 16, 2016 [1 favorite]


Can vermouth be substituted for the Fernet Branca?

I think the only viable substitute is Campari.
posted by dis_integration at 1:42 PM on February 16, 2016 [6 favorites]


If media reports that his body was cremated are inaccurate then I fall back to my usual theory in these cases: Miss Peacock in the Conservatory with the Lead Pipe.
posted by humanfont at 1:51 PM on February 16, 2016 [2 favorites]






Obama:

* Offers condolences to Scalia's family
* Scolds Senate for ignoring constitution, says he will nominate and it's the Senate's job to review, not stall. "There is more than enough time for the Senate to consider in a thoughtful way the record of a nominee I present and make a decision"
* Says he'll find outstanding legal mind, no particular position that will determine if he nominates. Wants someone indisputably qualified (this was kind of in answer to should he nominate a moderate to appease the Senate)
posted by DynamiteToast at 2:04 PM on February 16, 2016


He seems amused/pissed.
posted by zutalors! at 2:05 PM on February 16, 2016 [1 favorite]


Too late, T.D. Strange.
The media has already taken the Republican-fed talking points about "This is the way things have always been done" and "Both sides do it!" as gospel, so anyone trying to inject actual facts from history at this point is just spitting into the wind.
posted by Atom Eyes at 2:08 PM on February 16, 2016 [1 favorite]


* Starts an aside to point out how ridiculous it is that it's now common to deadlock all judge positions
* Acknowledges that R Senators are under pressure to not confirm anyone that he presents to him, but says that's just not how the constitution works
* Says he'll look at the candidates and pick the best one and present him or her in due time
* Asked if they should interpret this as picking a moderate candidate, he interrupts the asker with a blunt 'No."
posted by DynamiteToast at 2:09 PM on February 16, 2016 [3 favorites]


He seems amused/pissed.

Also, not wearing tie. Fucks not given.
posted by dis_integration at 2:10 PM on February 16, 2016 [14 favorites]


Too late, T.D. Strange. The media has already taken the Republican-fed talking points about "This is the way things have always been done" and "Both sides do it!" as gospel, so anyone trying to inject actual facts from history at this point is just spitting into the wind.

This doesn't really match up to what I've been seeing in the press.
posted by showbiz_liz at 2:13 PM on February 16, 2016 [2 favorites]


(It's possible my view is skewed after watching bits and pieces of this morning's network TV news/entertainment shit shows. I should really stop doing that.)
posted by Atom Eyes at 2:17 PM on February 16, 2016


PZ Myers has had enough:
For me, this is what defines Scalia: his dissenting opinion in Edwards v. Aguillard. The man was a confident ignoramus.
posted by Johnny Wallflower at 2:24 PM on February 16, 2016 [6 favorites]


He seems amused/pissed.

I feel like this is going to be default Obama for 2016. I hope he makes all his press conference entrances to something appropriate, like maybe mama said knock you out for example, why don't i work in the white house pr office
posted by poffin boffin at 2:27 PM on February 16, 2016 [7 favorites]


"I am not unhappy that I am not on the ballot"
posted by Stewriffic at 2:28 PM on February 16, 2016 [3 favorites]


"Being President is a Serious Job" - Obama on why Trump won't be President.
posted by zutalors! at 2:33 PM on February 16, 2016 [1 favorite]


T.D. Strange, I'm just going to keep ringing my bell of doom.
posted by clawsoon at 2:35 PM on February 16, 2016


Press conference over. While we're talking about conspiracy theories, he talked specifically about serving til your term is over, and the he would serve til January 20, 2017, so he's not ruling out nominating people with the next Senate I guess.
posted by DynamiteToast at 2:35 PM on February 16, 2016


Wait, that quote from Edwards v. Aguillard is Scalia summarizing someone else's testimony. C'mon PZ, that's deceptive at a minimum.

Someone's pointed out the same thing on Meyers' blog, along with more analysis.
posted by benito.strauss at 2:51 PM on February 16, 2016 [2 favorites]


President Barack Obama vowed on Tuesday to name an “indisputably” qualified Supreme Court nominee and lashed out at Republicans who he said demand a strict interpretation of the Constitution — except regarding his right to propose a new Justice. (Source)
posted by joseph conrad is fully awesome at 2:58 PM on February 16, 2016


Breaking News: Obama Still President
posted by T.D. Strange at 3:14 PM on February 16, 2016 [7 favorites]


So if the Republicans manage to normalize outright refusing to consider SCOTUS picks by an opposing-party president, where do the stakes go from there? Lawmaking in a divided government is already a dead letter....does a hostile Senate refuse to confirm any executive branch appointees at all, ever? Demand the resignation of the entire administration after the legislature changes hands?
posted by Holy Zarquon's Singing Fish at 3:19 PM on February 16, 2016 [3 favorites]


I am starting to view the current Senate and House as the Washington Occupation.
posted by Oyéah at 3:20 PM on February 16, 2016 [3 favorites]


Black Phoenix Alchemy Lab has released commemorative scents celebrating Scalia's words and donating the proceeds to groups that should make him roll over once or twice.
posted by Ambrosia Voyeur at 3:23 PM on February 16, 2016 [3 favorites]


Good catch, benito.strauss. I forgot about Myers' shoot-from-the-hip crankiness regarding issues of religious belief.
posted by Johnny Wallflower at 3:30 PM on February 16, 2016 [1 favorite]


Demand the resignation of the entire administration after the legislature changes hands?

This is more or less how most democracies work. Plus they automatically dissolve themselves and submit to the people's judgement through an election, if they can't manage to pass a budget.

Our legislators just sit around not doing their job.
posted by tivalasvegas at 3:34 PM on February 16, 2016 [3 favorites]




Saw it suggested elsewhere that a new liberal justice might actually be welcomed by the Republican Party, as they could then use the near-certainty of at least one more justice's death in the next 8 years as a tool for riling up their base in advance of the election.

This theory supposes that the Republicans care more about getting elected than actually implementing their policies of choice, but, well
posted by showbiz_liz at 3:40 PM on February 16, 2016


Also, not wearing tie. Fucks not given.

It may have been an homage. While it's apparently impossible to find a picture of him without a tie on, he seems like he was more of an open-collar guy.
posted by rhizome at 3:40 PM on February 16, 2016


Also, not wearing tie. Fucks not given.

So, Kennedy killed the hat for men, and now Obama is killing the tie. About fucking time.

I actually wish I worked in a job that requires ties, so I could come in without one tomorrow and say "Hey, if it's good enough for the President of these United States..."
posted by happyroach at 3:42 PM on February 16, 2016 [7 favorites]




Harry Reid, in the Washington Post:
Indeed, in the most recent debates over the judiciary, Democrats’ actions have been aimed at guaranteeing fair votes for as many qualified nominees as possible. In response to unprecedented Republican obstruction, Democrats changed the Senate rules in 2013 to allow qualified nominees to be confirmed by a simple majority vote, instead of 60 votes. This change alleviated judicial emergencies across the country by allowing a flood of qualified nominees to be confirmed. (We stopped short of changing the threshold for Supreme Court nominees — maybe that was a mistake.) If Republicans proceed down this path, one side effect will be settling that debate once and for all and proving that Republican obstruction is so extraordinary — so historically unprecedented — that this “nuclear option” was indeed necessary. That said, I would much rather be vindicated in some other way.
He doesn't mess around.
posted by fedward at 4:09 PM on February 16, 2016 [13 favorites]


I hope he makes all his press conference entrances to something appropriate, like maybe mama said knock you out for example, why don't i work in the white house pr office.

And at the end, he drops the mic and exits to "Uptown Funk." Girls, hit your hallelujah.
posted by FelliniBlank at 4:20 PM on February 16, 2016


"Don't call it a comeback, I've been here for years" does seem apropos....
posted by Holy Zarquon's Singing Fish at 4:37 PM on February 16, 2016 [4 favorites]


Also, not wearing tie. Fucks not given.

By July, Obama's going to be showing up for press conferences with a full beard and wearing shorts and sun glasses.
posted by octothorpe at 5:28 PM on February 16, 2016 [18 favorites]


Maybe a tattoo.
posted by FelliniBlank at 5:51 PM on February 16, 2016 [3 favorites]


If that happened, it would totally belong on some denomination of currency. I don't care which one, it would just need to happen.
posted by MysticMCJ at 5:51 PM on February 16, 2016


Bathrobe and fuzzy slippers.
posted by ChurchHatesTucker at 5:58 PM on February 16, 2016 [1 favorite]


He'll go full Parrothead
posted by rhizome at 6:09 PM on February 16, 2016 [6 favorites]


Lights up a Marlboro Red on camera.
posted by FelliniBlank at 6:12 PM on February 16, 2016 [2 favorites]


Know ye that if I am found dead with a pillow on my face that I have been struck down by one of my legion of cowardly enemies while I slumbered. However if I am found dead inside a pillow fort then be it known by all that I died the way I lived: inside a pillow fort.
posted by um at 7:21 PM on February 16, 2016 [32 favorites]


By July, Obama's going to be showing up for press conferences with a full beard and wearing shorts and sun glasses.

SCENE: The Oval Office, just like Reagan and Bush I used to do, complete with a chyron blaring SPECIAL ANNOUCEMENT FROM THE PRESIDENT OF THE UNITED STATES. Obama is sitting at the desk, looking serious, like he always does, although it's somewhat offset by the fact that he's kind of dressed like The Dude--t-shirt with some grease stains from the trip he and Joe took to Ray's Hell Burger earlier that day, baggy shorts, even a chintzy bathrobe that was obviously a gift from the kids a decade or so ago--and has a bottle of Bullitt's on the desk. In a move reminiscent of Bush's famous speech on the drug cartels, Obama holds up a bag, somberly intoning that this marijuana was acquired just blocks away from the White House.

But then, in a stunning turn of events, he opens the bag and takes a deep whiff. "Damn, is this some of that hydro I've been hearing about?" He chuckles, muttering something about how rich white kids definitely know their shit when it comes to growing weed, and pulls out one of those weed vapes from one of the desk drawers. He takes a pinch out of the bag, packs it, and says "This is for you, Grover." He turns it on, takes a deep hit, coughs a bit, and blows the smoke right at the camera. He cracks a big ol' shit-eating grin, leans back, puts his be-Croc-ed feet up on the desk in that way that drives conservatives up the fucking wall (and you know he knows it), and says "Executive Order 420: Shit's legal, yo."

FADE TO BLACK
posted by zombieflanders at 7:27 PM on February 16, 2016 [12 favorites]


I wonder if he could nominate Richard Posner.
posted by humanfont at 7:59 PM on February 16, 2016


He would never. Never ever ever. Maybe Diane Wood, though.
posted by sallybrown at 8:16 PM on February 16, 2016




Richard Posner

Posner is old, and hardly a liberal. He's a learned fellow but his legal philosophy is kind of a barbarically libertarian interpretation of legal pragmatism. I suspect he'd be a Kennedy-esque justice: pro gay marriage, but anti Union, pro corporation. in any case, he's only got 10-15 productive years left in him, tops. (disclaimer: a relative of mine clerks for him)
posted by dis_integration at 4:46 AM on February 17, 2016 [5 favorites]


Kirsten West Savali, Call a Thing a Thing :
In 2005, Scalia had this to say about his storied career: “I don’t worry about my legacy. Just do your job right, and who cares?”

This is where I agree with him. Though it may have been politically necessary for President Barack Obama to call Scalia’s service “extraordinary,” as journalists, writers, truth-seekers and truth-tellers, our only job is to make it plain and get it right. That job is not always polite and it’s definitely not always welcomed.

posted by bardophile at 5:14 AM on February 17, 2016 [1 favorite]


How an Obama Nomination to Supreme Court Is Likely to Play Out in the Senate - Former aide to Harry Reid discusses some of the steps Senate Dems could take to help persuade the Majority to let a vote happen.
posted by DynamiteToast at 7:23 AM on February 17, 2016


The NYT runs through five nomination scenarios: Supreme Court Path Is Littered With Pitfalls, for President and G.O.P.
posted by fedward at 8:23 AM on February 17, 2016 [1 favorite]


benito.strauss: I'm with PZ here, while Scalia was trying to cover himself with the rhetorical fig leaf that he was just quoting the people who enacted the law, and totes not agreeing with them, his argument was to quote them extensively and say that they sure seemed sincere in their belief that creationism was science so therefore he agreed that it should be taught in science class.

I note that Scalia didn't quote extensively from, for example, convicted murderers who proclaimed their innocence and then state that since they seemed so sincere in their claims of innocence that we should believe them and dismiss charges.

I think this quote might have been better though:

Interviewer: Isn’t it terribly frightening to believe in the Devil?

Scalia: You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.


Really the whole interview is worth reading, Scalia was absolutely a theocrat who dressed up his religious dictates in the lie of "originalism" in order to get to a ruling he liked.

And, like most such petty minded would be authoritarians he was a hypocrite to the end. Note that he spent his entire life playing Captain Catholic, defender of the Church, hater of Vatican II, protector of all Catholic traditions, and devotee of the idea that not one jot or tittle of Catholic dogma should change.

And he wrote into his will that his body was to be cremated.

Its true that the Church no longer forbids cremation, though it still strongly discourages it. You know when that happened? VATICAN FREAKING II. The same Vatican II that Scalia spent most of his non-judicial life railing against, decrying as inherently anti-Catholic and generally the worst thing to have ever happened since Martin Luther.

But, as always with those kinds of petty authoritarians, the rules he was so devoted to enforcing on the unwilling were rules he exempted himself from.
posted by sotonohito at 9:09 AM on February 17, 2016 [9 favorites]


Most of mankind has believed in the Devil, for all of history.

A substantial misunderstanding of what the phrases "most of mankind" and "for all of history" actually mean.
posted by hippybear at 9:15 AM on February 17, 2016 [10 favorites]


Stop bringing up Posner, it's never going to happen. He's only two years younger than Scalia was. The trend now is to nominate someone in their early to mid-fifties, for obvious reasons. Plus, Posner has essentially zero overlap with Kagan/Sotomayor, he's the definition of a libertarian. Obama might sooner nominate Rand Paul, they'd likely have a similar voting record. The only reason he keeps getting mentioned is he's one of the few Circuit judges whose name the public knows.
posted by T.D. Strange at 9:19 AM on February 17, 2016 [5 favorites]


I probably agree with with Meyers' final analysis of Scalia, but I object to his post. It's clearly deceptive, as it makes it look he was quoting Scalia when he was not.

I also got curious about the cremation thing. I can't find much about it, and currently Gawker says "If the reports about Scalia’s requested cremation are true—and, as of now, there’s nothing beyond a few joking tweets to suggest they are ...". I think the tweets are very funny, but they don't provide a basis for analyzing his personality if they're not anchored to any true facts.

There's so much to criticize about Scalia's real actions I just don't get why people feel the need to manufacture fake ones.
posted by benito.strauss at 10:00 AM on February 17, 2016 [2 favorites]


I would be stunned if the cremation reports were anything more than the result of people taking those joking tweets just a little too seriously. There have been no credible reports that Scalia will be cremated and all of the coverage of his lying in repose and funeral arrangements strongly suggest that his body will be buried (versus his ashes being interred).
posted by devinemissk at 10:14 AM on February 17, 2016 [1 favorite]


Ah, thanks. I was looking for that article and couldn't find it. I guess "lie in repose" and "lie in state" are different things. I searched for the latter.
posted by benito.strauss at 10:27 AM on February 17, 2016


Who are Scalia's kids? The Justice Had 9 Children & 28 Grandchildren
posted by readery at 10:32 AM on February 17, 2016


Considering that there have already been links in this thread that state that his body was taken to El Paso to be embalmed and prepared for display at the Supreme Court on Friday, I would assume that any cremation (if there is to be one) would happen after this event.
posted by hippybear at 10:48 AM on February 17, 2016


I retract what I said about cremation then, I thought the original news story reported that he not only had requested cremation but that it had already been carried out.

My mistake.
posted by sotonohito at 10:57 AM on February 17, 2016 [1 favorite]


I think you're still right about his basic hypocrisy of exempting himself and his personal favorites from the rules he expected everyone else to follow.
posted by benito.strauss at 11:17 AM on February 17, 2016


Uh on, Obama to skip Scalia's funeral. I guess this means the Republicans really won't like him now.
posted by Brandon Blatcher at 1:11 PM on February 17, 2016 [1 favorite]


Just like Scalia often skipping the State of the Union address, did Obama call his funeral "a childish spectacle?"
posted by rhizome at 1:31 PM on February 17, 2016


but it's in the Constitution

He shall from time to time give to Congress information of the State of the Union and recommend to their Consideration such measures as he shall judge necessary and expedient.
— Article II, Section 3 of the U.S. Constitution

posted by zutalors! at 1:37 PM on February 17, 2016


SCOTUS is not part of Congress. That the Justices attend is merely a formality.
posted by hippybear at 1:39 PM on February 17, 2016


yes, I know that SCOTUS is not part of Congress, thanks. I was joking because Originalism.The linked article referred to Scalia calling the SoTU a childish spectacle.
posted by zutalors! at 1:42 PM on February 17, 2016


Obama to skip Scalia's funeral.

That's why we have a Vice President.
posted by ChurchHatesTucker at 1:51 PM on February 17, 2016


the SoTU a childish spectacle

To be fair it kind of is. But at least it's in the Constitution, and hasn't hurt anyone too bad.

As opposed to you know that other part of the constitution which is a runon sentence that supposedly gives everyone the right to run around with handguns, or those other other parts of the constitution that define which chunks of humanity are and aren't fully human.
posted by tivalasvegas at 1:52 PM on February 17, 2016


It's obviously not required that the President attend, but it feels disrespectful. This is different than attending a political speech. Other than Bush attending Rehnquist's, have Presidents traditionally attended funerals for Justices?
posted by zarq at 1:53 PM on February 17, 2016 [1 favorite]


It looks like, per Wikipedia, the SC justice (not including Rehnquist) who most recently passed away was Lewis F. Powell in 1998 (he's the justice who held Kennedy's seat). I didn't see any mention of President Clinton attending his funeral in a cursory look over the NYT and LAT articles on his death.
posted by tivalasvegas at 2:08 PM on February 17, 2016


Crap, that Wikipedia list is unhelpfully ordered for this purpose. It was actually Blackmun in 1999. Still, it doesn't look like these are typically big state events.
posted by tivalasvegas at 2:11 PM on February 17, 2016


It was actually Blackmun in 1999.

I believe that Bill Clinton didn't attend Blackmun's funeral, although Hillary did; Bill Clinton did attend Thurgood Marshall's funeral in 1993.
posted by cjelli at 2:23 PM on February 17, 2016


Marshall being, of course, a landmark justice.
posted by rhizome at 2:29 PM on February 17, 2016 [1 favorite]


Richard A. Posner: The Incoherence of Antonin Scalia, 2012
The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.

Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.
posted by the man of twists and turns at 2:33 PM on February 17, 2016 [6 favorites]


I dunno, if it's a choice between Obama not attending the funeral at all and attending clad in a Speedo, mesh tank top, and pair of chucks from his No Fucks Given collection, he probably should sit this one out.
posted by FelliniBlank at 2:45 PM on February 17, 2016 [3 favorites]


Without knowing whether the decision not to attend the funeral was Obama's and not the wishes of the family, it's pretty useless to speculate.
posted by zombieflanders at 2:45 PM on February 17, 2016 [3 favorites]


Would Obama attend Rush Limbaugh or Sean Hannity's funeral? Same difference.
posted by T.D. Strange at 2:46 PM on February 17, 2016


He shall from time to time give to Congress information of the State of the Union and recommend to their Consideration such measures as he shall judge necessary and expedient.

Yeah, but this is pretty widely interpretable. Prez could just write a letter, which I think is what they used to do. And time to time? That could mean anything. Television turned it into a piece of the constant, 24/7 campaign that the parties are always engaged in today, and as a kind of marketing to nudge Congress in the the President's desired legislative direction. Basically, the SOTU today is a really boring commercial for the party in power. I'm with Scalia on this one.
posted by dis_integration at 3:01 PM on February 17, 2016 [1 favorite]


Prez could just write a letter, which I think is what they used to do.

Every president from Jefferson to Taft sent a written report. It's been done a couple of times since, too, the last time in 1981 by Carter.
posted by Chrysostom at 3:24 PM on February 17, 2016 [1 favorite]


I don't trust every single move made by President Obama-- he is more of a centrist than I am-- but I do trust he knows what to do on this occasion. He is a thoughtful, serious man and if he thinks it best or needs to skip the funeral for whatever reason, than I am sure that is the right decision.
posted by Secret Life of Gravy at 4:14 PM on February 17, 2016 [3 favorites]


It's a thing that helps or harms nobody, and even at the extremes of likely behavior it will be nothing if not a footnote in the fullness of history.

I mean, let's go back to 100+ years ago when it appeared relatively common for Justices to last less than 10 years.
posted by rhizome at 5:14 PM on February 17, 2016


Ted Cruz is the only one on this Republican Town Hall who is stupid enough to talk about Trump for ten minutes instead of himself.
posted by zutalors! at 7:01 PM on February 17, 2016 [3 favorites]


michael dukakis dgaf
posted by kliuless at 9:41 PM on February 17, 2016 [13 favorites]


Would Obama attend Rush Limbaugh or Sean Hannity's funeral? Same difference.

I disagree. They're practically cartoon characters. Stereotypes of the worst conservativism has to offer. He wasn't.
posted by zarq at 7:45 AM on February 18, 2016 [3 favorites]


I don't think that's really relevant. RL and SH aren't contemporaries of Obama. Scalia, for all my problems with him, held one of the 9 most significant posts in that branch of government. You can think how he did his job blew - I do - but he was never the less a senior player who took doing that job seriously. He has been a Supreme Court justice since before Obama entered law school.

There's surely a lot of good reasons not to go, but to claim the partisan divide makes it no different than skipping some radio jackass' funeral doesn't pass the sniff test.
posted by phearlez at 9:03 AM on February 18, 2016 [2 favorites]


How many hotels has the pope?
posted by Artw at 9:26 AM on February 18, 2016 [3 favorites]


Would Obama attend Rush Limbaugh or Sean Hannity's funeral? Same difference.

RL and SH are talk show hosts. Scalia was a Justice on the highest court in the land. Office matters.
posted by Going To Maine at 11:28 AM on February 18, 2016 [1 favorite]


Looks like Obama is respecting the Scalia family's wishes:
“Given his personal relationship with the family and given the president’s desire to find a respectful way to pay tribute to Justice Scalia’s service to the country, we believe we have settled on an appropriate and respectful arrangement,” Earnest said.

Obama's decision to skip the funeral puzzled both allies and critics, especially because the president is facing a fierce fight with the Senate over the confirmation of Scalia's replacement. However, people close to the Scalia family said Obama was making the right choice and that the Friday ceremony at the Supreme Court was the better place for Obama to pay his respects.
posted by zombieflanders at 1:03 PM on February 18, 2016 [6 favorites]


Decent article, but skip the comments; it's a troll feeding frenzy.
posted by ambulocetus at 1:33 PM on February 18, 2016


Scalia was a Justice on the highest court in the land. Office matters.

Yeah, and going to funerals is the vice-president's job.
posted by puddledork at 1:34 PM on February 18, 2016


going to funerals is the vice-president's job.

well, they're the ones who know how to dress in a manner appropriate to somber occasions.
posted by phearlez at 1:57 PM on February 18, 2016 [4 favorites]


However, people close to the Scalia family said Obama was making the right choice and that the Friday ceremony at the Supreme Court was the better place for Obama to pay his respects.

Ah, ok.
posted by Going To Maine at 2:12 PM on February 18, 2016




well, they're the ones who know how to dress in a manner appropriate to somber occasions.

True fact: Cheney was wearing a Speedo and a mesh tank top under that parka.
posted by FelliniBlank at 3:21 PM on February 18, 2016


Cheney was wearing a Speedo and a mesh tank top

Don't tell the gay cure people about this but I think you've just turned me straight.
posted by tivalasvegas at 3:27 PM on February 18, 2016 [9 favorites]


SCOTUSblog argues: Ninth Circuit Judge Paul Watford is the most likely nominee to replace Antonin Scalia
...
This post substantially revises and supersedes my earlier one on how the political parties will likely approach the Scalia vacancy, in which I had concluded that Ninth Circuit Judge Paul Watford was the most likely nominee. On reflection, I think that Attorney General Loretta Lynch is more likely.

SCOTUSBlog needs to slow down.


SCOTUSBlog is now going with Judge Ketanji Brown Jackson of the District Court for the District of Columbia. Very interesting. I like this pick. I think it would be especially interesting to see how Paul Ryan reacts, due to the family connection. But I'm not sure how a district court judge would go over versus COA.
posted by sallybrown at 4:50 PM on February 18, 2016


I can't wait for SCOTUSBlog to get around to me.
posted by ChurchHatesTucker at 4:52 PM on February 18, 2016 [5 favorites]


I'm already picking out some nice Chantilly lace for my robe bib.
posted by sallybrown at 4:53 PM on February 18, 2016


Wait, what? Ketanji? We went to jr high and high school together. Wild.
posted by phearlez at 7:58 PM on February 18, 2016 [6 favorites]


I knew I had emailed her since I lived up here; I went back and looked for it. Interesting that SCOTUSBlog calls her two kids young; in late 2008 they were 7 and 4. 14 and 11 aren't old, certainly, but well into being pretty independent.

Also interesting that there was no burps on her confirmations. At the time we emailed she'd been recently representing Gitmo detainees and I told her I was proud to know someone doing that work. She said - this is about three weeks before Obama's swearing-in - "With any luck, this travesty won't continue on much longer."

Well.

If I were her I'da never left Morrison & Foerster. I don't know anything about the job or culture but she had a @mofo.com email address. How cool is that? Their webpage has a section called MoFo Insights. There's one called - and I am not making this up - MoFo in the News. This is why Ketanji went on to great things and I am me - my sole mission in life working there would be to get that changed to MoFos.
posted by phearlez at 8:12 PM on February 18, 2016 [8 favorites]


She sounds like a great person, but I think the idea Obama will nominate a district court judge rather than a court of appeals judge (or an AG/SG) is extremely unlikely. Like, I'd eagerly bet a week's wages on it, and I cannot afford to lose that much. I think they're right in that the eventual nominee will be someone with an impeccable background and probably someone relatively recently approved near unanimously. Jackson has the educational pedigree and the big deal clerkship, but being a district court judge is not on the same level as court of appeals in terms of prestige.

The rest of her experience is private practice, assistant federal public defender, and serving on the Sentencing Guideline commission. This isn't the kind of unassailable credentials Obama is going to be looking for. I think it would be easy to portray her as a convenient candidate, rather than the best. The last justices not to be former CoA judges are Kagen (former solicitor general, comparably prestigious), Sandra Day O'Connor (former State Court of Appeals judge, state attorney general, and state representative, I don't think her resume would fly in this day and age) and Reinquist (former assistant attorney general, also questionable by today's standards).

I think Obama is in a pretty tough spot here, because whomever he nominates is going to need to agree to be the focal point of a huge political shitstorm, and possibly have their life disrupted for six months only to not get a floor vote or get rejected. Then the next president (even assuming that's Clinton or Sanders) is probably going to want to nominate someone of their own choosing.
posted by skewed at 9:05 PM on February 18, 2016


I think your reasoning is dead-on and correct and I reject it because it would be super cool to have went to high school with a supreme court justice. Even if she didn't remember me when I dropped her that "hey cool" email back in 08.
posted by phearlez at 9:15 PM on February 18, 2016 [6 favorites]


whomever he nominates is going to need to agree to be the focal point of a huge political shitstorm

I have to think this has long been understood. Probably still have a ton of volunteers.
posted by rhizome at 12:52 AM on February 19, 2016


It definitely has long been understood, but the idea was that it was a political shitstorm that would probably end in the nominee having the best job in the world for the rest of his or her life. I'm not sure that too many people would be willing to undergo the shitstorm when the outcome was unlikely to be successful.
posted by ArbitraryAndCapricious at 4:54 AM on February 19, 2016 [1 favorite]


I think it would still be worth it, because it would raise your profile so immensely that it would likely result in other excellent opportunities.
posted by Miko at 8:38 AM on February 19, 2016 [1 favorite]


I think it's hard for a lot of us to really understand the mindset. But it's an indisputable truth that roughly a dozen people turn out every four years willing to undergo what it takes to try for President and rarely does any one of them have any better than a 50-50 shot at getting the gig. Pretty much every cycle you have a Kaisich or O'Malley whose numbers are so low and prognosis so poor that there's several of us here who are almost as likely to get a shot, and that's before even the general.

So I don't know that you even can start from the standpoint of thinking about whether it's worth it from a profile standpoint. There's a certain personality type you have to have before you can shoot for this level, other career benefits aside.
posted by phearlez at 9:24 AM on February 19, 2016 [2 favorites]


I'd love to vote for Michelle Obama for President over Hillary Clinton.
posted by jeffburdges at 10:46 AM on February 19, 2016 [6 favorites]


I'd love to vote for Michelle Obama for President

She's smart enough not to want it. She had her reservations even about her husband doing it.
posted by Miko at 11:34 AM on February 19, 2016 [2 favorites]


I don't even understand what that Michelle Obama comment has to do with anything we're discussing here, to be honest.
posted by ArbitraryAndCapricious at 12:35 PM on February 19, 2016 [4 favorites]


I happened upon the video of the Obamas paying their respects to Scalia at the Supreme Court. It was like 20 seconds of awkward.
posted by zutalors! at 12:50 PM on February 19, 2016


I dunno, I did the about same in a similar military-viewing situation.
posted by rhizome at 2:47 PM on February 19, 2016


yea that wasn't a criticism of the Obamas. It just looked very awkward.
posted by zutalors! at 3:35 PM on February 19, 2016


> Wait till Cheney dies, there will be literally dancing in the streets (in some countries) (unlike Kissinger, who is actually immortal, and sadly will never perish).

"If you read no other interview, read the one in Salon with author (and former soldier) Joseph Hickman about his new book, The Burn Pits: The Poisoning Of American Soldiers. You once again will want to bury Dick Cheney in a fire ant nest."
posted by homunculus at 2:24 PM on February 20, 2016 [4 favorites]




PPP: Toomey, Portman Hurt By Supreme Court Stance
-Strong majorities of voters- 58/35 in Ohio and 57/40 in Pennsylvania- think that the vacant seat on the Supreme Court should be filled this year. What’s particularly noteworthy about those numbers- and concerning for Portman and Toomey- is how emphatic the support for approving a replacement is among independent voters. In Ohio they think a new Justice should be named this year 70/24 and in Pennsylvania it’s 60/37. Those independent voters are going to make the difference in these tight Senate races, and they have no tolerance for obstructionism on the vacancy.

-Voters are particularly angry about Senators taking the stance that they’re not going to approve anyone before even knowing who President Obama decides to put forward. By a 76/20 spread in Pennsylvania and a 74/18 one in Ohio, voters think the Senate should wait to see who is nominated to the Court before deciding whether or not to confirm that person. Toomey and Portman are out of line even with their own party base on that one- Republicans in Pennsylvania think 67/27 and in Ohio think 63/32 that the Senate should at least give President Obama’s choice a chance before deciding whether or not to confirm them.

-This is an issue that really does have the potential to make Portman’s and Toomey’s lives even harder this fall if they don’t change their tune. In both states the numbers are identical- 52% of voters say they’ll be less likely to vote for either Portman or Toomey this fall if they refuse to confirm a replacement for Justice Scalia no matter who it is, compared to only 25% who say taking that stance makes them more likely to vote for them. In both cases the numbers reinforce how perilous it is with independents for Portman and Toomey to take the position that they’re not confirming someone no matter what- in Ohio 59% of them say that makes them less likely to vote for Portman to just 15% more likely, and for Toomey it’s 55% of independents less likely to vote for him based on that stance to only 24% more inclined to support him.

The outlook in these states is pretty clear- voters want a replacement for Justice Scalia to be named this year, and they especially overwhelmingly want Republicans in the Senate to give President Obama’s selection a chance. Rob Portman and Pat Toomey are already in trouble for reelection and this is an issue where their approach has real potential to put them in even deeper trouble as they seek reelection as unpopular incumbents.
posted by zombieflanders at 9:38 AM on February 22, 2016 [9 favorites]


The first vulnerable GOP incumbent to break ranks is Mark Kirk (IL).
posted by Holy Zarquon's Singing Fish at 1:30 PM on February 22, 2016 [3 favorites]




Slate’s Amicus Podcast: “Amicus: The Contradictions of Antonin Scalia”, featuring two interviews: Yale’s Akhil Reed, on originalism and Scalia’s use of it, and NYU professor and former Scalia Clerk Rachel Barkow on the justice as a mentor.
posted by Going To Maine at 4:39 PM on February 22, 2016 [3 favorites]


In its first post-Scalia session, court liberals school conservatives on the realities of exceptions to the exclusionary rule:
This dispute leads to the most searing and uncomfortable moment of the morning. Alito attempts to ridicule Watt’s deterrence arguments by asking, “Do you think the judges in traffic courts are going to start issuing lots of warrants because they want to provide a basis for randomly stopping people?”

Watt starts to answer, but Sotomayor cuts in with a brutal joust.

“I’m very surprised,” she says acidly, “that Justice Alito doesn’t know that most of these warrants are automatic. If you don’t pay your fine within a certain amount of days, they’re issued virtually automatically.”
(I believe the proper response is "Oh, snap!")
posted by dirigibleman at 9:29 AM on February 23, 2016 [10 favorites]


After closed door meeting, Senate GOP decides no hearing

I'm assuming that the sentence "That way the American pope have a voice in the process." contains a typo, and that the Senate GOP have not made plans to name a Pope.
posted by nubs at 10:28 AM on February 23, 2016 [4 favorites]


I hope this at least dispels the notion that the Supreme Court is anything other than another political branch with lifetime appointment. And next time a Republican says anything about defending the Constitution, the only appropriate response is mocking laughter.
posted by T.D. Strange at 10:38 AM on February 23, 2016 [2 favorites]


I highly doubt that will sit well with voters. Hopefully the GOP will get taken to the cleaners on election day over this.
posted by zarq at 10:49 AM on February 23, 2016


"I'm assuming that the sentence "That way the American pope have a voice in the process." contains a typo, and that the Senate GOP have not made plans to name a Pope."

Not while Obama is president!
posted by klangklangston at 11:03 AM on February 23, 2016 [4 favorites]


Just based on talking to the less politically engaged friends and family, the idea of obstructing a nomination for an entire year is not popular. Hopefully that anecdote is reflected more broadly out there, but I'm not yet convinced they won't get away with this.
posted by Drinky Die at 11:07 AM on February 23, 2016


I think they could get away with postponing the hearings until the next President is elected. But I'm less convinced that vulnerable Republicans would sail to re-election in the meantime.
posted by zarq at 11:15 AM on February 23, 2016


I hope this at least dispels the notion that the Supreme Court is anything other than another political branch with lifetime appointment. And next time a Republican says anything about defending the Constitution, the only appropriate response is mocking laughter.

A token reminder that the vast majority of cases are 9-0 (though, of course, the second highest number is 5-4 splits).

Year | 9-0 | 8-1 | 7-2 | 6-3 | 5-4
2014 | 41 | 07 | 12 | 15 | 26
2013 | 66 | 03 | 10 | 08 | 14
2012 | 49 | 05 | 09 | 08 | 29
2011 | 44 | 11 | 08 | 17 | 20
2010 | 48 | 13 | 15 | 05 | 20
2009 | 46 | 10 | 15 | 11 | 18
2008 | 33 | 05 | 16 | 16 | 29
2007 | 30 | 09 | 29 | 14 | 17
2006 | 39 | 13 | 11 | 04 | 33
2005 | 56 | 05 | 11 | 16 | 12
2004 | 41 | 08 | 17 | 12 | 22
posted by Going To Maine at 11:37 AM on February 23, 2016 [1 favorite]


(Well, generally 5-4 comes second. 2005 and 2007 didn’t get the memo.)
posted by Going To Maine at 11:39 AM on February 23, 2016


Drinky Die: Conservative Law Students at Georgetown Were ‘Traumatized’ by an Anti-Scalia Email

Someone should probably remind those professors and students of the aphorism "Don't try to teach your Grandmother to suck eggs."

Black Law Students at Georgetown: We are shaken and angry at conservatives’ response to Scalia’s death
"In the same spirit of understanding and empathy called for by professors, and given Justice Scalia’s often polarizing, offensive and intolerant stances, we ask that an individual’s decision of whether or not to mourn be equally respected.

Until today, many of our colleagues at our institution could not empathize with the statements of, or understand the sentiments expressed by many Black students at Georgetown Law concerning marginalization.

We were advised that law school classrooms were not meant to be a “safe space.”

We hope that in the future, professors of all political ideologies and leanings, through more collegial discourse, will offer their solidarity, strength, and support to all marginalized students fighting for greater representation, recognition, and inclusion at Georgetown Law."

posted by zarq at 12:20 PM on February 23, 2016 [3 favorites]


Reading into that article a bit, it seems bizarre and highly ironic to me for Randy Barnett to get safe-spacey against professors, but am I being insensitive in interpreting that this whole story is pretty meta and maybe "working the refs" on both Scalia legacy and academic conduct (if not speech codes)?
posted by rhizome at 12:47 PM on February 23, 2016 [1 favorite]


A token reminder that the vast majority of cases are 9-0 (though, of course, the second highest number is 5-4 splits).

I think you really need some more info about the cases to get any sense from that. Which of those cases pretty much had to be taken up because of a conflict of laws between circuits, for example?
posted by phearlez at 12:59 PM on February 23, 2016


A token reminder that the vast majority of cases are 9-0

A plurality is not a "vast majority"--9-0 isn't even the majority most of those years.
posted by Horace Rumpole at 1:08 PM on February 23, 2016 [5 favorites]




Called it!

But seriously, this is what a constitutional crisis looks like. Republicans will never, ever, ever, allow Democrats to swing the Supreme Court. Ever. They've been working for 40 years to get a permanent Republican majority on the Court and were really close before Scalia had to up and die on them, they're not about to throw away all that work over something as petty as a functioning government, institutional norms, or the spirit of the Constitution when what's at stake is their ability to roll back 150 years of hated social progress.

It's going to come to the point where SCOTUS justices are only confirmable when one party controls the Senate and the White House, which makes the Court just a smaller Senate with lifetime appointment. Which it always was anyway, but now should be out in the open. And when that happens, there may be 2, 3, 4 openings stacked up resulting in a wild swing. Imagine a world where Clinton wins, but is prevented from filling a Court vacancy for Scalia, Kennedy and Ginsburg.
posted by T.D. Strange at 1:37 PM on February 23, 2016 [3 favorites]


At what point are various members of Congress breaking the law here? Like is there some sort of law on the books they they have to... do their jobs?
posted by showbiz_liz at 1:58 PM on February 23, 2016


Nope, the only real penalty for politicians who don't do their jobs is voting them out. The system is designed that way.
posted by Eyebrows McGee at 2:02 PM on February 23, 2016 [3 favorites]


A token reminder that the vast majority of cases are 9-0

A plurality is not a "vast majority"--9-0 isn't even the majority most of those years.

Yeah, fair. “Plurality”
posted by Going To Maine at 2:28 PM on February 23, 2016


This is getting insane: @mkraju: MCCONNELL and CORNYN both say they won't even meet with a SCOTUS nominee. McConnell also wouldn't commit to up-or-down vote for next POTUS

Mitch McConnell is a turtle of a politician.
posted by Going To Maine at 2:31 PM on February 23, 2016


At what point are various members of Congress breaking the law here? Like is there some sort of law on the books they they have to... do their jobs?

That's just it though...no. The only "rule" is that the Senate must "advise and consent" on nominations under the Constitution. The Republicans position is that they are advising this President that they will not consent to anyone he nominates. So, now what? Either vote in a Democratic Senate, or a Republican President.
posted by T.D. Strange at 2:59 PM on February 23, 2016


Suppose that the Supreme Court didn't have a quorum. Barring something tragic and unpredictable (death of a sitting President?) and apart from the buildup of unheard cases, is there anything that would amount to an actual crisis?
posted by Joe in Australia at 3:31 PM on February 23, 2016 [1 favorite]


I could be wrong on this, but my impression is that a Constitutional crisis is essentially a mutually-agreed-upon hallucination. If enough of us consider this a crisis, it is one.
posted by Going To Maine at 3:54 PM on February 23, 2016 [4 favorites]


Part of me is cynically optimistic that the GOP's leadership is in fact speeding the figurative car into the brick wall on purpose, in the hopes that the "base" aren't wearing seat belts and get ejected in the inevitable crash. And/or they just don't want to live anymore and want to die in the crash themselves.

There are too many Republican seats in swing (or outright blue) states in this election for their obstructionist strategy to seem wise. If Ohio and Pennsylvania are already polling against them, what's going to happen in Florida, Illinois, New Hampshire, or Wisconsin? Isn't continued obstructionism likely to hurt the GOP in a general election more than it helps with "the base?"

So arguably this could be a way of letting the tea party folks flame out. "See? We gave you what you wanted and you lost. Now go away and let the adults run things."
posted by fedward at 4:16 PM on February 23, 2016


But seriously, this is what a constitutional crisis looks like. Republicans will never, ever, ever, allow Democrats to swing the Supreme Court. Ever. They've been working for 40 years to get a permanent Republican majority on the Court and were really close before Scalia had to up and die on them, they're not about to throw away all that work over something as petty as a functioning government, institutional norms, or the spirit of the Constitution when what's at stake is their ability to roll back 150 years of hated social progress.

Politics makes for strange bedfellows but I do wonder if the Republican party as we know it is going to survive this election cycle. I think there's a good chance either the tea party crackpots split or the center-right establishment does. The establishment has been unwilling to give up on the whole "Grand Old Party" thing, but the extreme right flank has become ungovernable. Something's gotta give.
posted by fedward at 4:24 PM on February 23, 2016


I think they're serious about it. The big money types want a 5th vote to roll back every labor law upto and including child labor and Social Security just as badly as evangelical base wants to repeal Roe. Both want to lock in the complete repeal of voting rights protections to ensure Democrats can never make a comeback. They've literally spent a generation trying to stack the Court with 5 Antonin Scalias, and barring that, to hold onto the 5-4 deadlock largely in their favor. Allowing Obama or Hilary this win betrays everything they've ever worked for.
posted by T.D. Strange at 4:38 PM on February 23, 2016 [3 favorites]


I think the considerations for a potential Supreme Court nominee are different from those of a "I'll probably lose but raise my profile anyway" Presidential candidate. There's a pretty small pool of people who have a legitimate shot at being appointed to the Court. Hardly any of those people are elected officials. If it's true that Obama is looking at people on the younger side, some of those people (who are already in prestigious positions at the tippity-top of the legal profession) might rather roll the dice and wait for the next, calmer vacancy (and if it never comes, make peace with that) than participate in a messy, cruel, and apparently futile political mudfest right now.
posted by sallybrown at 5:01 PM on February 23, 2016


Suppose that the Supreme Court didn't have a quorum. Barring something tragic and unpredictable (death of a sitting President?) and apart from the buildup of unheard cases, is there anything that would amount to an actual crisis?

So, one scenario I've seen floating around is this: suppose we get a redux of 2000, and the presidential election is too close to call, but in two states. Maybe Ohio and Florida. Dems or Repubs sue in those states for a recount. The district court or supreme court of each state rule differently. Say Florida affirms and Ohio denies. It goes to the Supremes. They split 4-4. What happens now? Who is President? How do we decide? Does Congress decide? Do we pull out our guns?
posted by dis_integration at 5:06 PM on February 23, 2016


So, one scenario I've seen floating around is this: suppose we get a redux of 2000, and the presidential election is too close to call, but in two states. Maybe Ohio and Florida. Dems or Repubs sue in those states for a recount. The district court or supreme court of each state rule differently. Say Florida affirms and Ohio denies. It goes to the Supremes. They split 4-4. What happens now? Who is President? How do we decide? Does Congress decide? Do we pull out our guns?

As I understand it, the 4-4 tie would mean the lower court rulings stand and Florida would recount while Ohio didn't. Hardly ideal but there is at least a procedure for it.
posted by zug at 6:45 PM on February 23, 2016 [1 favorite]


The optics are going to look very bad for Republicans if they stand behind this "I refuse to even meet with the nominee" thing. Imagine the photo op of a nominee being refused entry at the door of a Senate office.
posted by sallybrown at 6:48 PM on February 23, 2016


A tie at the SC means the lower court ruling stands, but does not create precedent outside of the jurisdiction of that lower court. The Florida court's ruling would apply for Florida, and the Ohio court's ruling would apply for Ohio. [on preview, what zug said]

The district court or supreme court of each state rule differently.

They're different cases, so it doesn't break anything if they rule differently. It's not as if two separate courts are trying the exact same case. It might be unsatisfying if the rationales behind the decisions are inconsistent, but that doesn't undermine the legality of the decisions.
posted by DevilsAdvocate at 6:50 PM on February 23, 2016


Suppose that the Supreme Court didn't have a quorum.

Worth noting that six Justices constitute a quorum, so having no replacement for Scalia doesn't grind the SC to a halt, it just alters the likelihood of a tie vote.
posted by soundguy99 at 7:45 PM on February 23, 2016 [1 favorite]


Could two federal courts both rule on President-Elect Cruz's eligibility, come to opposite conclusions, and the Supreme Court tie when it tries to decide?

This scenario pretty much requires John Roberts has to have gone off his rocker, but if it did happen, I don't know what mechanism would resolve it short of the Senate confirming Obama's nomination and breaking the tie.
posted by BungaDunga at 10:24 PM on February 23, 2016


IIRC, there are candidates for the USSC seat who are were overwhelming confirmed by the Senate for their current roles in lower courts. "Bad Optics" indeed. "There was nothing wrong with them earlier, so...."
posted by mikelieman at 10:42 PM on February 23, 2016


Oh, there's one way out of a constitutional crisis: a constitutional convention called by the states. 34 states propose it to Congress; Congress has to call a Constitutional convention. If we're lucky, the states manage to ratify an amendment that resolves the crisis.
posted by BungaDunga at 10:42 PM on February 23, 2016


No, I think a constitutional convention would TRIGGER a crisis. There would be no way to bind the convention to a single topic, and the amount of money thrown at a convention would make presidential campaigns look cheap. They could even change the ratification process. The only precedent we have is the original convention, which was called to amend the articles of confederation but instead threw them out the window. Given the money that would be involved today, I'd be very worried that we'd lose civil and worker rights, end up with a much weaker Supreme Court, and a much stronger Congress.
posted by postel's law at 5:17 AM on February 24, 2016 [3 favorites]


If you want to end the United States pretty quickly, call a constitutional convention.
posted by T.D. Strange at 5:46 AM on February 24, 2016 [7 favorites]


Holy shit, no. A constitutional convention would be the worst thing to happen; who knows what horrible distopian crap the republicans would try to add to the constitution. They're already on the table wanting amendments to ban abortion and same-sex marriage; given the once in a lifetime opportunity of a convention, they'd trot out the worst shit that they can think of.
posted by octothorpe at 7:02 AM on February 24, 2016 [1 favorite]


A Responsibility I Take Seriously, by President Obama, for SCOTUSblog.
posted by roomthreeseventeen at 7:04 AM on February 24, 2016 [8 favorites]


A nice get for SCOTUSBlog, but running pieces from BHO isn't going to help your position with the Senate and their press credentialing inanity.
posted by phearlez at 7:27 AM on February 24, 2016




The Senate press gallery is run by a committee of journalists elected by the membership, so for once it's not the GOP's fault, even indirectly.
posted by Holy Zarquon's Singing Fish at 7:33 AM on February 24, 2016


They set it up that way, though, and it's inane to ask competitors to judge who of their competition to credential. And since their prior stand was that SCOTUSBlog wasn't journalistish enough I stand by my assertion that some of those clowns would hold this against them.
posted by phearlez at 8:22 AM on February 24, 2016


They've literally spent a generation trying to stack the Court with 5 Antonin Scalias

Eh. Harriet Miers sure wouldn't have been a Scalia. Although frankly I still don't understand what the Miers nomination was about. But since that's an interesting idea, the Republican nominees since Scalia have been:
  1. Bork: OK, another Scalia, definitely. Rejected.
  2. Kennedy: Conservative but unpredictable. Not a reliable fifth vote.
  3. Souter: Liberal. IIRC he was even acknowledged as being pretty liberal at the time though.
  4. Thomas: Extreme conservative, but not so much another Scalia as his own thing.
  5. Roberts: Mostly conservative on social issues, pro-business to a fault, but not anti-government enough (so, with Roberts you get Citizens United but also Obamacare).
  6. Miers: ¯\_(ツ)_/¯
  7. Alito: Perhaps the best example of an "another Scalia."
By my count that's two in the Scalia vein (one rejected, one confirmed), two more mostly reliable conservatives, although again Thomas isn't necessarily likely to join when he can concur, two wildcards, and one outlier in Souter. That's not much of a stack.
posted by fedward at 8:44 AM on February 24, 2016






Thomas: Extreme conservative, but not so much another Scalia as his own thing.

I wouldn’t get too hung up on going for a “Scalia” as opposed to a “reliable conservative vote”. Since Thomas is more conservative than Scalia -as I understand it- that’s certainly a success. Roberts, similarly, is a solid conservative vote. The base has slammed him over a few edge things, but in general he’s been down the line predictable.
posted by Going To Maine at 10:43 AM on February 24, 2016




Political twitter seems to think that this is Obama straight-up trolling the Republicans. He knows they won't confirm his nominee, and he's looking for the most embarrassing nominee for them not to confirm. I wonder what would happen if they took the bait and did confirm.
posted by ArbitraryAndCapricious at 10:52 AM on February 24, 2016


Interesting. Another argument (to spin out random hypotheticals) is that it would probably move him out of any sort of future presidential bid. But this is all pretty wild speculation, beyond that some people wanted it to look Sandoval is getting vetted.
posted by Going To Maine at 10:53 AM on February 24, 2016


Since Thomas is more conservative than Scalia -as I understand it-

This is where a simple line continuum kinda fails us. The major difference between the two IMNSHO is that - unless it involved drugs - Scalia was more protective of the 4th Am where Thomas is straight-up extremist authoritarian.
posted by phearlez at 10:54 AM on February 24, 2016


Political twitter seems to think that this is Obama straight-up trolling the Republicans.

@missokistic:
Obama: My Supreme Court nominee is… Jesus.
GOP: N-n-n-o?
Obama: Zombie Reagan
GOP: *sweating profusely*
Obama: A gun
GOP: *faces melt off**
posted by Going To Maine at 10:56 AM on February 24, 2016 [17 favorites]


Yeah, they walked right into this one by being so obstructionist they won't even meet with him or anything. This way he can shame them for not even considering a Republican without actually having to nominate one. If Sandoval isn't really the pick, Obama can still back off later. If he is, well just based on a quick look he doesn't seem that bad for a compromise.
posted by Drinky Die at 11:07 AM on February 24, 2016


I wouldn’t get too hung up on going for a “Scalia” as opposed to a “reliable conservative vote”.

Well the thesis was "five Antonin Scalias," not "five reliable conservatives." But by the measure of reliably conservative justices appointed and confirmed since Scalia I still have to score them about 3¾ out of 7, at best. So, better than 50% success, but only barely (and maybe not enough of a discount for Kennedy). I guess if you start counting with Scalia's appointment then it's 4¾ out of 8, and it rounds up to five, but they have failed at creating a permanent conservative majority. They'd have to start with a 6-3 court and then have no two-term Democratic presidents to have a good chance of keeping the numbers up.

And while I have long felt that "permanent Conservative everything" was the primary goal of the GW Bush presidency, more so than even Saint Ronny or GHWB dared hope (tax cut poison pills and irresponsible spending designed to drive up the deficit, limiting the ability of any future Democratic president to spend anything; a rush to fill as many lower court seats as possible and then change rules to make it harder to fill those seats later, and so on), this really calls the Miers nomination into question. If they wanted a permanent conservative majority on the court, why even try to appoint her? Did they have dirt on her they thought would keep her in their pockets? Was this a crony deal gone horribly wrong?
posted by fedward at 11:07 AM on February 24, 2016


Wow, Sandoval is really interesting. Not sure if I'd be happy with giving up on a true liberal, but he's pro-choice, implemented the ACA in Nevada and is at least not overtly hostile to marriage equality.

Just looking at the long-term impact, it could cause serious long-term damage to the Republican party to fight the nomination of a sitting Republican governor who would be only the second latino on the court. And while it wouldn't allow for the wholesale shift that switching out Scalia with someone more like Ginsburg/Breyer, it would still make a big difference.

Still, this is probably just leaked for lulz, I can imagine Sandoval agreeing to go along with the vetting just to raise his profile for a later run at the senate.
posted by skewed at 11:09 AM on February 24, 2016


Not sure this is doing him any favors with the Republican base in Nevada that just went hard for Trump.
posted by Drinky Die at 11:11 AM on February 24, 2016


Well, Souter is widely seen as a traitor to the GOP and a huge reason why only provable conservatives with a paper trail of partisan decisions like Thomas, Roberts and Alito came afterwards. I'd call that 4 at bats, with 3 home runs and a strike out since Scalia.

Miers was weird, that's obvious. But she was widely agreed by everyone to be unqualified for the job on a basic level, there was some sort of Bush family personal patronage at play there that didn't pass the basic smell test from the first moment. Call that one a balk.
posted by T.D. Strange at 11:15 AM on February 24, 2016


Probably not, but it is doing him favors with moderates and democrats in a state that went for Obama by 6.5% in 2012 and 13% in 2008.
posted by skewed at 11:16 AM on February 24, 2016 [1 favorite]


Scalia would insist we stick to the original intent of the post framers.
posted by T.D. Strange at 11:28 AM on February 24, 2016 [4 favorites]


Manu Raju ✔ ‎@mkraju
Just asked Deb Fischer, Nebraska Republican, if she'd consider Sandoval as a Supreme Court nom. She said no. "It's not about the person."
2:10 PM - 24 Feb 2016


Burgess Everett ✔ ‎@burgessev
Cornyn says doesn't make a difference if Sandoval is the nominee. Position stays the same
1:47 PM - 24 Feb 2016

posted by Drinky Die at 11:36 AM on February 24, 2016 [1 favorite]


Oh please GOP, don't aim that gun at your foot, no. Stop. Don't.
posted by Holy Zarquon's Singing Fish at 11:38 AM on February 24, 2016 [1 favorite]


Wow, that's ridiculous. I guess the senators from Nebraska and Texas and other deeply red states are comfortable with this position, but is leadership at all worried about saying that a sitting Republican governor is so unqualified that he wouldn't get a hearing?

It makes me optimistic that this election cycle could be a major long-term disaster for not only the sitting republicans, but the republican party as a brand. But then again, I basically guaranteed everyone I knew that Trump would never even win a primary, so he wasn't worth talking about.
posted by skewed at 11:47 AM on February 24, 2016 [1 favorite]


At first glance Sandoval looks like a brilliant pick. Maximum political damage for Republican obstruction, while he doesn't look nearly as bad as Scalia on the issues. He'd probably instantly become the new median/swing Justice if confirmed, shifting the center considerably. Simply being a reliable 5th vote to uphold Roe, maybe even add some reasonable (or any, really) teeth to Casey could be considered a huge liberal win. I guess there's the chance he could be a reverse Souter and turn into Alito after he's confirmed, but he has enough of a record as governor that it doesn't seem likely. It'd be a small win, but infinitely better than if the pick went to Trump.
posted by T.D. Strange at 11:50 AM on February 24, 2016


Sandoval is increasingly viewed by some key Democrats as perhaps the only nominee President Obama could select who would be able to break a Republican blockade in the Senate.
NO. Jesus fucking Christ what the hell is it with "key Democrats" and their self destructive belief that any action, no matter how awful and bad, is better than inaction?

What's the fucking point of getting someone appointed if to do it you have to give the Republicans back their 5-4 majority on the Court? That's worse than just leaving the Court as it is.

This cult of action for its own sake, this asinine belief that someone its more important to get something done, even if that something is enacting the Republican's policy for them, drives me into a frothing rage.

Obama nominates anyone to the right of Sotomayor or Kagan and he's going to reaffirm to everyone that there really is no difference between the parties.
posted by sotonohito at 11:52 AM on February 24, 2016 [2 favorites]


What's the fucking point of getting someone appointed if to do it you have to give the Republicans back their 5-4 majority on the Court? That's worse than just leaving the Court as it is.

You tell a conservative a RINO is a Republican and they’ll break your face.
posted by Going To Maine at 11:54 AM on February 24, 2016 [1 favorite]


I'm pretty sure the Sandoval "leak" is just supposed to a (so far successful) troll of the GOP. Or maybe that's just the optimism talking.
posted by zombieflanders at 11:55 AM on February 24, 2016 [1 favorite]


What's the fucking point of getting someone appointed if to do it you have to give the Republicans back their 5-4 majority on the Court? That's worse than just leaving the Court as it is.

There's got to be some rearguard considerations here. Nominating Goodwin Liu or someone who clearly can't be confirmed is futile and burns up time while they vote him down until the fall when their argument to let the next President choose becomes more salient by the day. Someone just to the left of Kennedy that makes Republicans look stupid for obstructing is a better outcome than if the next President making the pick is a Republican, while moving the court somewhat in a favorable direction on at least some issues.
posted by T.D. Strange at 11:58 AM on February 24, 2016 [2 favorites]


If Sandoval really is reliably pro-choice, then he is a complete non-starter for Republicans, which means Obama can tout him as a great option, get positive press for being moderate, conciliatory, willing to work with Republicans, etc., but not have to worry about him getting nominated.

If (and it's a big if), this is just a mutually beneficial PR-troll that the White House and Sandoval have agreed upon, then it could be great for both. (he gets a big boost in name recognition and as long as he doesn't have to go through an actual senate confirmation hearing, it wouldn't make him look bad to be considered and then withdraw from the process on his own).
posted by skewed at 12:03 PM on February 24, 2016 [1 favorite]


Yeah, it's better that Obama gets a moderate in than Trump, Rubio, or Cruz chooses who takes the seat.
posted by Drinky Die at 12:03 PM on February 24, 2016


If a Republican wins in 2016 we're doomed anyway because there's no possible way Ginsburg or Breyer will hang on even another four years. Its a miracle Scalia died before either of them.

And then, if Obama really is serious and he does get Governor Republican through, the Republicans will have a flipping 7-2 majority and we're doomed to reverse everything going back all the way to the New Deal and heck possibly even back to Reconstruction.

If Obama really and truly does nominate anyone who has ever been a Republican he'll be throwing the 2016 election to the Republicans, because there's no way in hell most Democrats will ever vote Democrat again if that's how our "victories" go. Obama has already stabbed us in the back so often that its amazing people, like me, are still willing to support the Democrats at all.

But I personally will never vote Democratic again, doesn't matter if the nominee is Sanders or Clinton, at any level, if Obama even nominates, much less successfully nominates, an actual Republican (no matter how "liberal" he is on abortion) to the Supreme Court.

They are the enemy, you do not appoint your enemies to important positions. It was bad enough when he appointed a Republican as Secretary of Defense, but that's nothing compared to the Supreme Court.

He does this, the Democrats will tank in 2016 and be doomed as a party. Any party that betrays its members that deeply, that significantly, is going to fail and die.
posted by sotonohito at 12:39 PM on February 24, 2016


Oh man, remember that hilarious idea that judges were going to be chosen for their wisdom and knowledge of the law, and not on ideological purity tests of what party people voted for? Good times, good times.
posted by corb at 12:48 PM on February 24, 2016 [1 favorite]


Sure, it was just like the time "we have to take our country back!" to. Which clearly existed at some point.
posted by T.D. Strange at 12:52 PM on February 24, 2016 [2 favorites]


corb, I don't think anyone alive can remember that mythic time. It certainly ended around five minutes after the first Court sat.

But it was really egregiously highlighted in 2000 when the Republicans on the Court stole the election for their party.
posted by sotonohito at 12:53 PM on February 24, 2016 [4 favorites]


I have grudgingly accepted it is reasonable to decide based on previous rulings and how they interpret the Constitution, even if that often aligns with partisan bias. Saying that anyone who's ever voted Republican is a bridge too far is something totally new though.
posted by corb at 12:59 PM on February 24, 2016 [1 favorite]


no, it's not
posted by internet fraud detective squad, station number 9 at 1:04 PM on February 24, 2016 [7 favorites]


Not for me. If they are now, or ever have been, a Republican I don't want them near the levers of power.

They're the people who, after all, are so racist, so isolationist, so misogynist, so generally and all around deeply opposed to all I hold dear, that they're nominating Trump.

If that's the party from whom Obama selects a nominee than I'm finished with the Democrats forever.
posted by sotonohito at 1:06 PM on February 24, 2016


Oh man, remember that hilarious idea that judges were going to be chosen for their wisdom and knowledge of the law, and not on ideological purity tests of what party people voted for? Good times, good times.

this is a funny comment given that the context is a republican-controlled senate refusing even to consider a nominee from a democratic president
posted by shakespeherian at 1:11 PM on February 24, 2016 [9 favorites]


Not for me. If they are now, or ever have been, a Republican I don't want them near the levers of power.

I guess that idea about nominating Hillary is out. :P
posted by Drinky Die at 1:15 PM on February 24, 2016 [1 favorite]


Political twitter seems to think that this is Obama straight-up trolling the Republicans. He knows they won't confirm his nominee, and he's looking for the most embarrassing nominee for them not to confirm. I wonder what would happen if they took the bait and did confirm.

I don't know that it's trolling, but maybe it's this:

GOP: We won't accept any nominee. Doesn't matter who. It's a matter of principle.
Obama: How about a Republican?
GOP: Okay, fine. A Republican.
Obama: Oh, well that's just one person on our short list. But since you've confirmed this is not a matter of principle, here's my real nominee.

Assuming this is President Obama's play, what does he have to lose? If Senate Republicans still say no, they look terrible. If they say yes, they've shown this has nothing whatsoever to do with principle. As a bonus, every candidate will be asked if Sandoval is qualified for the court, and they'll have to answer.

If this leak is completely on the level, then I don't know what kind of game the President is playing.
posted by duffell at 1:30 PM on February 24, 2016


If it's completely on the level, it means he's okay going back to the Clinton-era days when there were three avowed rightists on the court, four liberals and two "conservatives" who were nevertheless swing votes on many issues. So the liberals could get a majority by peeling off either of Kennedy or O'Connor, while the conservatives needed both. Not nearly as good as five liberals, but infinitely better than five conservative hard-liners and significantly better than 4-4 with both sides sucking up to Kennedy 24/7.
posted by Holy Zarquon's Singing Fish at 1:39 PM on February 24, 2016 [1 favorite]


Not for me. If they are now, or ever have been, a Republican I don't want them near the levers of power.

This opinion is near & dear to my heart. But it also gets to me because it’s the exact situation with which the Constitution is unprepared, because our dumb ol’ founders didn’t want political parties - and now we have but two of them.
posted by Going To Maine at 1:40 PM on February 24, 2016 [1 favorite]


Saying that anyone who's ever voted Republican is a bridge too far is something totally new though.

I was going to say 'no one is actually saying this!' but then I guess people went and actually said this, so. I have to agree that's a step too far and I'm honestly surprised to hear people here endorsing it.

When we're saying things like:
They're the people who, after all, are so racist, so isolationist, so misogynist, so generally and all around deeply opposed to all I hold dear,

...those are all good grounds to not nominate a judge. No racists! No isolationists! No misogynists! Definitely But party affiliation?

If they're bad on labor rights, then don't nominate them.
If they're bad on civil rights, then don't nominate them.
If they're bad on equal rights, then don't nominate them.
Keep on going down the line. If there's no problem other than their party affiliation, why is that a problem?

Stopping at 'Republican' and using that as a proxy for those issues is exactly the kind of partisanship the President should set aside.
posted by cjelli at 1:43 PM on February 24, 2016 [6 favorites]


Ben Mathis-Lilley, over at Slate:
Did Obama leak the Sandoval rumor just so that Republicans would look ridiculous by refusing to consider him? I don't know—but it does certainly make the Republicans look ridiculous! He should escalate it by floating the possibility of nominating an actual sitting Republican senator. ("McConnell Rejects Possibility of McConnell SCOTUS Nom"?)
posted by ogooglebar at 1:44 PM on February 24, 2016


Appendix to the above: I'm not sure that there are any Republican judges who could pass a whole slate of different checks, so the effective outcome might (probably would) be the same as 'don't nominate a Republican ever, if you're a Democratic President.' But I think the President should at at least bother to check.
posted by cjelli at 1:45 PM on February 24, 2016 [1 favorite]


Stopping at 'Republican' and using that as a proxy for those issues is exactly the kind of partisanship the President should set aside

It's a pretty damn good proxy though. They are terrible on all of those things, almost to a person. And if Scalia had died in February 2013, it would've been a pretty good starting place to say no Republicans, ever. He would've already had 2 picks confirmed, with a favorable Senate, and could shoot for the stars. You can bet they would do the same, and you don't unilaterally disarm from a position of strength. This isn't 2013, and Obama does not have a position of strength. A moderate Republican left of Scalia almost by default and preferably left of Kennedy is much better than anyone Trump would pick, and is the only way of even conceivably getting a confirmation. And that has to be in the calculus.
posted by T.D. Strange at 1:55 PM on February 24, 2016 [3 favorites]


It's a pretty damn good proxy though. They are terrible on all of those things, almost to a person.

A lot of things are good proxies, until we realize -too late- that they aren’t.
posted by Going To Maine at 2:09 PM on February 24, 2016


cjelli I really wish I knew why so many liberal types have bought into the poisonous idea that partisanship is inherently bad. I'm partisan and make no bones about it, if Obama hadn't bought into the foolhardy idea that partisanship was bad and we could all just join hands with the Republicans in a spirit of bipartisan comity and get good things done he wouldn't have wasted so much of his presidency.

To be a Republican is to sign on to an agenda supporting all those things I listed as bad.

I say also that there should be no Klansmen seated on the court, that mere membership in , or even sympathy towards, the Klan is sufficient grounds to instantly disqualify a person from even the slightest consideration for a Supreme Court seat. I see no need to analyze the details of such a person, to determine if they match my views on labor issues, or foreign policy, or what have you. They're part of the KKK, there's no need to take note of any other aspect of such a person.

I suspect you'd agree with me that members of the Klan don't deserve any deeper consideration.

Membership in the Republican party is, to me, on the same plane. Such people have embraced an agenda focused on racism, misogyny, homophobia, and all manner of other bigotries. I see no need to bother considering any other thing in their CV, to me they've marked themselves as inherently unworthy of being considered for office.

Furthermore, the notion of Obama nominating a Republican is a slap in the face to all Democrats, and tacit agreement with the Republicans that they, and only they, are worthy of power and all Democrats are mere pretenders who are inherently unworthy and gain power only via horrible mistakes.

As when Obama nominated Robert Gates it is a message that says "Yup, the Republicans are right, only a Republican is worthy of the post of Defense Secretary, all you Democrats who thought you might be worthy were horribly wrong, every single Democrat in existence is less qualified for this post than a Republican is."

similarly nominating a Republican to the Court is a message from Obama that literally every single Democrat in existence is less qualified, less worthy, than that Republican.

So no. I do not see anything wrong with taking a partisan view here. You damn sure don't see the Republicans taking a nice, handshake across the aisle, bipartisan view towards things. When was the last time a Republican president sat any Democrat in their cabinet? Never, of course. Because they are many things, most of them bad, but at least they understand how to fight.
posted by sotonohito at 2:10 PM on February 24, 2016 [1 favorite]


I'm sick and tired of being told that its always up to the Democrats to bend, to compromise, to nominate Republicans for positions of power.

There would never even be a rumor of a Republican president nominating a Democrat to the Supreme Court. the very idea is so absurd that it'd never even make it as a silly rumor on the net.

But Obama is such a stab us in the back style President that it's easily believable that he'd piss away a Supreme Court nomination on a Republican in yet another pathetic, weak, spineless, cowardly, show of submission to the Republicans. That sort of betrayal has been the hallmark of his entire term in office.

And it is because people like you have made partisanship a dirty word (but only for Democrats, Republicans get to be partisan without being scolded), and have enshrined compromise as an inherent virtue rather what you settle for when you can't simply get what you want.

I want to fucking win for a change, not take another "compromise" that is defeat in disguise.
posted by sotonohito at 2:14 PM on February 24, 2016


t, if Obama hadn't bought into the foolhardy idea that partisanship was bad and we could all just join hands with the Republicans in a spirit of bipartisan comity and get good things done he wouldn't have wasted so much of his presidency.

If Obama hadn’t bought into the idea that partisanship was bad, he wouldn’t have been elected. Perhaps he should have given up on the notion sooner, but without that idea he loses.
posted by Going To Maine at 2:16 PM on February 24, 2016 [1 favorite]


When was the last time a Republican president sat any Democrat in their cabinet? Never, of course.

Norman Mineta, 2001-2006?

Which is definitely the exception the proves the rule (Mineta was the only Democrat to serve at the Cabinet level under Bush), but.
posted by cjelli at 2:16 PM on February 24, 2016 [3 favorites]


I find myself completely confused by the idea that nominating a Republican is somehow contributing to Democratic self-esteem problems on their worthiness, but I may be missing something. Are there Democrats who feel unworthy and inferior to Republicans? That just doesn't make any sense to me.
posted by corb at 2:22 PM on February 24, 2016


Which is definitely the exception the proves the rule (Mineta was the only Democrat to serve at the Cabinet level under Bush)

It's more or less a tradition. Reagan appointed a Democrat (William Bennett) as Secretary of Education, just like Carter did James Schlesinger at Energy, just like Nixon did John Connelly at Treasury. Here's a list on Wikipedia.
posted by Copronymus at 2:22 PM on February 24, 2016 [1 favorite]


I'm sick and tired of being told that its always up to the Democrats to bend, to compromise, to nominate Republicans for positions of power...And it is because people like you have made partisanship a dirty word (but only for Democrats, Republicans get to be partisan without being scolded), and have enshrined compromise as an inherent virtue rather what you settle for when you can't simply get what you want.

If that's what you're getting from my suggesting the nomination process should look at people's views and history rather than party affiliation, such that, to quote myself, "the effective outcome [would probably] be the same as 'don't nominate a Republican ever, if you're a Democratic President.' But I think the President should at at least bother to check," then I really do not know what to tell you. How on earth is 'the President should use a process that leads to a Democrat being nominated to the bench' remotely the same thing as 'telling Democrats to compromise on a Republican?'

Process matters.
posted by cjelli at 2:23 PM on February 24, 2016 [2 favorites]


I find myself completely confused by the idea that nominating a Republican is somehow contributing to Democratic self-esteem problems on their worthiness, but I may be missing something. Are there Democrats who feel unworthy and inferior to Republicans? That just doesn't make any sense to me.

This country is fraught right now. If you told me that Obama had nominated a Republican governor sans context, I would want to know what the hell is up. And I think -without a doubt- that the Democrats are the party of compromise while the Republicans are the party of flipping out. I think the evidence has been overwhelmingly in support of this throughout the Obama administration, but given how angry the Republican base remains with their lunkheaded, obstructionist party, this may be more of a story about the extremes vs. the middle rather than the left vs. the right.
posted by Going To Maine at 2:33 PM on February 24, 2016 [2 favorites]


> I say also that there should be no Klansmen seated on the court, that mere membership in , or even sympathy towards, the Klan is sufficient grounds to instantly disqualify a person from even the slightest consideration for a Supreme Court seat.

This is kind of a weird fact I'm sharing because I was surprised to learn it, but Justice Hugo Black (oyez, wiki), who served on the Court from 1937-1971, was a former KKK member who's generally considered to have redeemed himself. Absolutely wouldn't fly today, and his appointment was even controversial back then, even in that different context.

But I can appreciate discomfort about a knee-jerk rule that anyone who's ever called themself a Republican is automatically spoiled goods. It feels like knee-jerk auto-nominating any Democrat merely because they're a Democrat, and that makes me uncomfortable, too.
posted by cdefgfeadgagfe at 2:50 PM on February 24, 2016 [5 favorites]


This is kind of a weird fact I'm sharing because I was surprised to learn it, but Justice Hugo Black (oyez, wiki), who served on the Court from 1937-1971, was a former KKK member who's generally considered to have redeemed himself. Absolutely wouldn't fly today, and his appointment was even controversial back then, even in that different context.

The world is so dang complicated it makes you cry sometimes.
posted by Going To Maine at 3:12 PM on February 24, 2016 [2 favorites]


stab us in the back style

From a rhetorical perspective I think this is a device best avoided.
posted by howfar at 3:17 PM on February 24, 2016 [3 favorites]


I also am perpetually bemused by the howls of betrayal that are expressed by left wing Democrats, that their party is, by and large, a centre-right organisation. It's hardly a new development.

From Beyond the Fringe, early 60s:
Jonathan Miller: Of course they have inherited our two party system.

Dudley Moore: Oh yes. How does that work?

JM: Well, let’s see, you have the Republican Party, you see, which is the equivalent of our Conservative party. And then you have the Democratic Party which is the equivalent of our Conservative Party. And then, of course, there are the liberals in the shape of people like….

All: [thinking and muttering] Yes, yes, yes….

DM: Are the liberals Democrat or Republican?

Alan Bennett: Yes. As is convenient for them.
posted by howfar at 3:27 PM on February 24, 2016 [6 favorites]


Josh Marshall on the "Three Nos" of the Republican Senate leadership:
that only tells me what's behind the ferocity of the "three nos." They need to end the debate now to avoid the political fallout. It is entirely within Mitch McConnell's power to simply never hold a vote, which is all that really matters for the Court. But managing the politics is another matter. And that is why it is critical to end the debate now.

If the Democrats are smart about this, this is a far more potent electoral cudgel in Senate elections than most folks realize. Start with the given that this battle is life and death for partisan Democrats and partisan Republicans. But those people seldom determine statewide elections, certainly not in swing states. Lightly affiliated Democrats and Republicans and actual swing voters are highly attuned to charges about political dysfunction, refusal to do your job and so forth.
I think he's right--this issue is a b-i-g loser for Republicans.

But--we'll see.
posted by flug at 4:12 PM on February 24, 2016 [3 favorites]


I give Josh Marshall a lot of grief, but he's good with the antagonistic analysis thing. I wonder if any of the more senior Congresspeople have been adjusting their blood pressure prescriptions in preparation for the year to come.
posted by rhizome at 7:06 PM on February 24, 2016


howfar: I never said it was new, but that doesn't make the betrayal any less painful.

cjelli: It does, I just happen to think that the process for a Democratic president with an opportunity to nominate someone for the Supreme Court should involve nominating a qualified Democrat. If no Democrat with the qualifications necessary for the job can be found then, and only then, should the President then look to the Republicans.

To do otherwise is to forget Bush v Gore, and to set ourselves up for another stolen election. The myth that party doesn't matter is just a myth, Bush v Gore proved that beyond any shadow of a doubt. When given the opportunity to cheat and steal an election for a member of their own party, the Republicans on the Supreme Court will not hesitate even briefly before taking that opportunity. Therefore, in order to avoid future stolen elections, it is imperative that the Republicans be a minority on the Court, **REGARDLESS** of their positions on any other issues.

Kennedy is, despite being pretty damn right wing, still regarded as a moderate Republican vote on the Court. Yet when he was given the opportunity to steal the 2000 election for Bush, he took that opportunity.

For that reason alone, I argue that it is foolhardy and self destructive for a Democratic President to nominate any Republican to the Court, ever, for any reason. We don't have to speculate about whether the "moderate" Republicans on the Court will steal elections for Republicans, we know.

Which is why the fact that Obama nominating Sandoval is plausible as a rumor makes my blood boil. Such a prospect should be so laughable that no one would even take it seriously as a rumor, but given Obama's past history of betrayal and shitting on his party and the left, it isn't laughable and it is believable. I can easily see Obama setting us up for Bush v. Gore part 2 by appointing Sandoval and patting himself on the back for how reasonable and bipartisan he was.

Maybe at some point in the mythic past, before the Tea Party and before the Republicans used the filibuster very close to more times in one Congress than it had ever been used in all American history prior to that point, you could argue for bipartisan comity as a lofty goal.

Today it just seems foolhardy if not like a deliberate betrayal. No one associated with the Republicans today is worth considering for dog catcher, much less Supreme Court Justice. The whole party is poison.
posted by sotonohito at 6:07 AM on February 25, 2016 [2 favorites]


You know, it's a deliberately linked rumor. I think it's a gambit designed to turn up the heat on the Republicans. I plan to wait out the next moves before worrying about Sandoval going on the court. This is a long way from that.
posted by Miko at 6:31 AM on February 25, 2016 [4 favorites]


corb: I find myself completely confused by the idea that nominating a Republican is somehow contributing to Democratic self-esteem problems on their worthiness, but I may be missing something. Are there Democrats who feel unworthy and inferior to Republicans? That just doesn't make any sense to me.

It isn't self esteem, its a question of qualification.

When Obama nominated Gates as Defense Secretary it sent a clear message that he considered every Democrat in existence to be less qualified than Gates. That's an insult, a slap in the face, to every Democrat in the military, every Democrat who thought they could aspire to be Secretary of Defense.

If there's some sort of tradition of giving irrelevant positions (Secretary of Transportation for example) to someone on the other side as a show of bipartisan comity ok fine. I think its silly and stupid because the whole damn point of electing a President is that the President's party gets the fruits of victory and that means cabinet posts among other things, but ok give a stupid pointless seat to someone on the other side if you must.

But Secretary of Defense is big, and worse by giving that seat to a Republican its buying into the Republican propaganda that they're better on defense. By declaring that no Democrats existed who were qualified for the post, Obama was massively reinforcing the Republican narrative on politics in general and especially their macho posturing propaganda on military matters.

It was one of his earlier betrayals of those who voted for him, and one of the first signs that Obama was going to be the utterly spineless coward who submitted to any and all Republican demands that he was for most of his Presidency.

The symbolism of Obama giving a Republican, one of the enemy, any truly important Cabinet job was bad enough. But the symbolism of picking one of the enemy for a job that they've always considered theirs by birthright, and have always insisted the Democrats were too weak, too feminized, to do was even worse. It bought into the misogynist, patriarchal, narrative of the Republicans perfectly and showcased Obama's inherent political weakness and his crippling belief that compromise was inherently good.
posted by sotonohito at 7:44 AM on February 25, 2016


Miko: "You know, it's a deliberately linked rumor. I think it's a gambit designed to turn up the heat on the Republicans. I plan to wait out the next moves before worrying about Sandoval going on the court. This is a long way from that."

I'm not sure what to think. Is he triangulating or is this 11-dimensional chess again? Or is he just fucking with us?
posted by octothorpe at 7:51 AM on February 25, 2016 [1 favorite]


I'm voting 11-D chess.
posted by Miko at 7:55 AM on February 25, 2016


It's one dimensional go. Very hard to play.
posted by maxsparber at 8:06 AM on February 25, 2016 [1 favorite]


When Obama nominated Gates as Defense Secretary it sent a clear message that he considered every Democrat in existence to be less qualified than Gates

No. He assumed that Gates was the best choice. The best choice isn't always the most "qualified". Political choices aren't made in a unidimensional space. Never mind 11-D chess: this is bog-standard 2-D chess.
posted by Going To Maine at 8:14 AM on February 25, 2016 [2 favorites]


I'm not sure what to think. Is he triangulating or is this 11-dimensional chess again? Or is he just fucking with us?

Obama has less than a year left in office, he wants to make sure he can disappoint progressives as much as possible in his remaining time as president.
posted by entropicamericana at 8:20 AM on February 25, 2016


Yes, I'm sure that disappointing progressives is his main motivation for everything he does.
posted by octothorpe at 8:27 AM on February 25, 2016 [4 favorites]


I know. Obama appealed to congress again about Gitmo, participated in the 2015 United Nations Climate Change Conference, announced the State Department's rejection of the proposed Keystone Pipeline, demanded criminal justice reform, and announced an executive order on gun control.

It's like all he wants to do is fuck over progressives.
posted by maxsparber at 8:37 AM on February 25, 2016 [6 favorites]


I know. Obama appealed to congress again about Gitmo, participated in the 2015 United Nations Climate Change Conference, announced the State Department's rejection of the proposed Keystone Pipeline, demanded criminal justice reform, and announced an executive order on gun control.

It's like all he wants to do is fuck over progressives.


Don't forget Cuba
posted by TedW at 8:39 AM on February 25, 2016 [4 favorites]


Apparently the ACA now counts for nothing.

That said, the gitmo announcement has gotten some pushback from amnesty and from the lawyers for the detainees, so that one still seems debatable.
posted by Going To Maine at 8:48 AM on February 25, 2016


cjelli: It does, I just happen to think that the process for a Democratic president with an opportunity to nominate someone for the Supreme Court should involve nominating a qualified Democrat. If no Democrat with the qualifications necessary for the job can be found then, and only then, should the President then look to the Republicans.

sotonohito, where we disagree is, I think, that I don't believe 'nominating a qualified Democrat' requires, process-wise, the President to begin by excluding Republicans from consideration purely on party grounds. Regarding Sandoval as an example, some summaries have him as 'good on women's rights, not terrible on LGBT issues, maybe bad on labor rights.' Well: I don't think Obama should nominate him, because that's not good enough. That wouldn't be good enough if he was a Democrat, either; being a Democrat certainly would not singly qualify a candidate -- we would be well served to look at their record and their stance on issues of the day. So if we cannot look to a Democrat's party affiliation to, alone, qualify them, and if we're already in a position of needing and wanting to vet people's records and policies...there's little harm in extending that vetting process to Republican candidates. The practical effect of that (I hope, and presume) is that Obama then nominates someone who happens to be a Democrat. If there exists a liberal Republican who's magically to the left of every Democratic nominee, then, sure, I'd be fine with him nominating a Republican. But I don't think that liberal Republican exists.

You had talked earlier about partisanship, and how Democrats should be more partisan and compromise less. I think the Presidency exists in an uniquely uncomfortable tension with regards to the Supreme Court, and that this discussion doesn't have any bearing on how, say, the Democrats in congress should act: the Court is supposed to be free of the sort of partisanship that Congress is not, because it makes rulings binding on all of the country, in the same way the President is supposed to represent all of America. But the President is also supposed to lead their party. And so I think, in looking to nominations, and in some other select functions of the Presidency, the President needs to maintain at least the perception of fairness. I do not think excluding an entire party from being vetted comports with the ideals of the Presidency. I do think that a vetting process that hews to the President's party's platform -- the President who was elected, by the people, in large part because of that platform -- is fair, so long as it goes by issues and by record and not merely affiliation or (electoral) voting record.

You've talked about the message it sends to Democrats to nominate a Republican. That's fair, and that's why I think the President should follow a vetting process that will lead to him nominating someone that Democrats will like -- I think he should follow a vetting process that will lead him to nominate a liberal justice, confirmation politics be damned.

But I also think the message it sends to Republicans, and to independents, to outright exclude Republicans on the grounds that they are Republicans is dangerously close to 'this President does not represent you.' That was how I felt during the Bush years. It's not a good feeling. Obama should not be taking pages from Bush's playbook.
posted by cjelli at 8:48 AM on February 25, 2016 [5 favorites]


Okay, just so I'm clear:

The DNC and friends say it's important we support Clinton and not that crazy left-wing other guy because otherwise a Republican could end up on the Supreme Court? Right?
posted by entropicamericana at 8:57 AM on February 25, 2016 [1 favorite]


Because otherwise a conservative nutjob could end up on the Supreme Court. David Souter is a Republican.
posted by Holy Zarquon's Singing Fish at 9:03 AM on February 25, 2016 [4 favorites]


There's got to be a pretty yawning gulf between "Obama's strategic compromise pick" and "Cruz's first choice."
posted by prize bull octorok at 9:09 AM on February 25, 2016 [3 favorites]


There's got to be a pretty yawning gulf between "Obama's strategic compromise pick" and "Cruz's first choice."

There definitely is, but there's a good argument that it's a bad strategy to compromise now when we're only a year out from, potentially, at least four more years for a Democratic president to push through a non-compromise candidate. That's trading a year now for maybe two decades later.
posted by cjelli at 9:13 AM on February 25, 2016


Relatedly, I think Obama nominating a compromise candidate (which he might feel compelled to do, because he does seem to believe strongly in a functioning government) puts the Democrats in the senate in a deeply uncomfortable place of being asked to confirm a a compromise candidate. I'm not sure that makes sense, leading into the upcoming elections.
posted by cjelli at 9:16 AM on February 25, 2016


I'm sure part of Obama's motivation is that this entire election right now is a shit show, and the result cannot be fairly predicted. If we were going into this with candidates and were pretty sure the Democrat would win the White House, then it would make no sense for him to propose a compromise candidate. But if we are going in with the possibility of a Republican president winning – possibly a president Trump – that makes all the sense in the world to try to get a moderate in.
posted by corb at 9:23 AM on February 25, 2016


Oh gosh, I feel much better now I know Scalia was on a hunting trip with an antique Austrian fraternal order active since the 1600s, and comprised largely of Northern European Royals, of course.
posted by Oyéah at 9:23 AM on February 25, 2016 [4 favorites]


I mean, I vote Republican and I'd still rather Obamas' moderate pick than literally anyone Trump nominates.
posted by corb at 9:24 AM on February 25, 2016 [2 favorites]


Oh gosh, I feel much better now I know Scalia was on a hunting trip with an antique Austrian fraternal order active since the 1600s, and comprised largely of Northern European Royals, of course.

I think we should get Hart and Cohle on this.
posted by prize bull octorok at 9:27 AM on February 25, 2016


Why should we vote for Hillary Clinton to ensure Left appointments, when Obama is *PRESIDENT* and he can't get the Senate to give advice let alone consent?

This issue disproves the "Hillary will save the US Supreme Court" hypothesis for me.
posted by mikelieman at 9:49 AM on February 25, 2016


I feel much better now I know Scalia was on a hunting trip with an antique Austrian fraternal order active since the 1600s, and comprised largely of Northern European Royals

Ah, but look at how cute they all look in their matching emblazoned robes! Like a little gaggle of Count von Counts from Sesame Street!
posted by Atom Eyes at 9:49 AM on February 25, 2016 [2 favorites]


Ah, but look at how cute they all look in their matching emblazoned robes! Like a little gaggle of Count von Counts from Sesame Street!

I think we now know where Scalia got his awesome inauguration hat.
posted by dis_integration at 10:04 AM on February 25, 2016


This issue disproves the "Hillary will save the US Supreme Court" hypothesis for me.

My impression is that that hypothesis is more conditioned on the electability argument - e.g. “When Sanders finally loses the primaries to Clinton, be sure to vote her in because you really don’t want to let some Republican make this choice, which is no longer an abstraction but a very real thing.”
posted by Going To Maine at 10:09 AM on February 25, 2016 [4 favorites]




What if Obama is leaking this precisely to let Clinton oppose it and give her progressive credentials?
posted by corb at 10:22 AM on February 25, 2016


According to a vaguely reliable-sounding Twitterer, Sandoval has removed himself from consideration.
posted by ArbitraryAndCapricious at 10:23 AM on February 25, 2016


Well if that was a trial balloon for political posturing, Sandoval must not have been in on the game. I don't think we'll have a full court again until one party controls the White House and Senate, whether that's 2016, 2018 or 2020.
posted by T.D. Strange at 11:22 AM on February 25, 2016 [1 favorite]


@DanAmira
The year is 2046. After decades of each party refusing to confirm the other's nominees, the Supreme Court consists entirely of Elena Kagan.
posted by figurant at 11:27 AM on February 25, 2016 [18 favorites]


Brilliant play from Obama (with Sandoval's cooperation or not?). He just proved the Repubs wouldn't as much as meet with one of their own, without actually nominating Sandoval. No matter how progressive his nominee is, Obama can now point back to this idiotic situation.

Grassley and McConnell would have been much smarter to say "it would be premature to comment on rumors" or some other inanity.
posted by sallybrown at 11:39 AM on February 25, 2016 [1 favorite]


Maybe Obama will float every vaguely moderate Republican possibility just to force those people to "remove themselves from consideration." Sort of the see-every-good-divorce-lawyer-in-the-state-to-conflict-them-out move of SCOTUS nominations.
posted by melissasaurus at 11:43 AM on February 25, 2016 [10 favorites]


For maximum trolling potential, Obama should float the idea of nominating Mitch McConnell. "He's got a lot of experience! And I hear he has a lot of opinions on the court."
posted by cjelli at 11:49 AM on February 25, 2016 [4 favorites]


For maximum trolling potential, Obama should float the idea of nominating Mitch McConnell.

Or himself: "You guys keep saying you want to get Obama out of the White House. Well, here's your chance! Do you want to be the Senators that voted to keep Obama as president?"
posted by melissasaurus at 11:51 AM on February 25, 2016 [6 favorites]


femme-esq theorizes that Obama floated Sandoval’s name with three goals in mind (spoiler alert: “getting Sandoval confirmed to SCOTUS” is not one of the three).

tl;dr: making the GOP Senators look even more unreasonable; weakening GOP support from conservative Hispanics; using his approval as a poison pill against an otherwise-promising future GOP star
posted by nicepersonality at 12:33 PM on February 25, 2016 [3 favorites]


Wait wait wait, so let me get this straight. If I’m reading it correctly, the political and historical calculus of nominating KKK members to the Supreme Court can be summarized as:

“Once (Hugo Black); you can never go back.”
posted by Riki tiki at 12:56 PM on February 25, 2016 [3 favorites]


Oh gosh, I feel much better now I know Scalia was on a hunting trip with an antique Austrian fraternal order active since the 1600s, and comprised largely of Northern European Royals, of course.

I think we should get Hart and Cohle on this.


Or Nick Berkhardt
posted by phearlez at 1:05 PM on February 25, 2016


femme-esq theorizes that Obama floated Sandoval’s name with three goals in mind (spoiler alert: “getting Sandoval confirmed to SCOTUS” is not one of the three).

So we can surely anticipate a nomination for Susana Martinez in the near future…
posted by Going To Maine at 1:08 PM on February 25, 2016


It's a pretty damn good proxy though. They are terrible on all of those things, almost to a person.

So you're saying that basically every single republican is terrible on labor rights, civil rights, and equal rights? That doesn't square with my experience of the world.

There needs to be some room between "might disagree with me on some aspects of [issue]" and "is terrible on [issue]." Reasonable epistemological humility is not, in fact, a flaw.
posted by internet fraud detective squad, station number 9 at 1:52 PM on February 25, 2016 [3 favorites]


sallybrown: “Grassley and McConnell would have been much smarter to say "it would be premature to comment on rumors" or some other inanity.

What’s beautiful about this is that the GOP had little choice but to undermine their own power plays:

If they say “it’s premature to comment” it implies that they’ll eventually be open to constructive commentary about one of Obama’s nominees. Given the current temperament of the GOP, they might as well claim that Jesus supported Islamic principles. The damage would be even greater if they reacted to the idea favorably, except maybe if they somehow saw it through and successfully got a conservative appointed. Since this wasn’t an actual nomination, it was (in retrospect) pretty clearly just bait to the “establishment” Republicans and they were at least savvy enough to not snap at it.

However, continuing to assert that they won’t entertain any nominees until after the election reinforces one of the Democrats’ most powerful messages: the GOP will not ever work towards a functioning government, even when offered thirty years’ worth of sympathetic Supreme Court votes—the plumpest and juiciest of olive branches. Their blatant refusal to consider such a generous gesture gives cover to a more progressive nominee, by dulling accusations that Obama is snubbing conservatives. The GOP will obviously still make that claim, since persecution complex politics are so core to the Republican brand. Nevertheless, it’s useful for the Democrats to have a straightforward rejoinder that fits into a cable news soundbite: “they could have a working government, but they prefer a broken one.”

As I see it, the GOP’s best option would’ve been to say nothing at all—stick their fingers in their ears and go “la la la” about the Sandoval situation entirely. That’s really hard to resist, though: the Senate Minority Leader proposed a nominee from the opposing party, an odd situation even under the best of circumstances... and given how radically partisan the U.S. has become, it’s ridiculous on its face and difficult to ignore. And perhaps more importantly, the GOP leadership might not assume it has currently has enough control over its members to get them to cooperate with their collective best interests (and I think they’re right to be concerned about that).

So this was a pretty brilliant move, in my opinion. Maybe I’m reading too much strategy into some lucky improvisation, but this sets the stage nicely for the messages of the next nine months while also being an honest and reasonable synecdoche for Republican obstructionism as a whole.
posted by Riki tiki at 2:15 PM on February 25, 2016


internet fraud detective squad, station number 9: "So you're saying that basically every single republican is terrible on labor rights, civil rights, and equal rights? That doesn't square with my experience of the world. "

I think there's a significant difference between "every single Republican" and "every single Republican high office holder." I would by no means say that all Republicans are bad on labor/civil/equal rights. I would absolutely say that the vast majority of important Republican politicians are lousy on them.
posted by Chrysostom at 3:37 PM on February 25, 2016 [1 favorite]


Given the current temperament of the GOP, they might as well claim that Jesus supported Islamic principles.

Tbh what'll blow their little minds is that Muslims actually believe that Jesus is the Messiah and a Muslim himself. I encourage anyone to tell that to their Islamophobic acquaintances and tell us what their reaction is.
posted by zombieflanders at 4:08 PM on February 25, 2016 [2 favorites]


So you're saying that basically every single republican is terrible on labor rights, civil rights, and equal rights?

At a national level, yes. That is absolutely what I'm saying. Sure, you might know some Republican voters in your personal or professional life that don't agree with every abhorrent position. But those people are not national policy makers, and are not up for the Supreme Court. You do not get to be a national figure in the Republican party by holding reasonable or moderate views on any of those things anymore.
posted by T.D. Strange at 4:09 PM on February 25, 2016


But you're talking about judges and attorneys who might get nominated to the Supreme Court, right? I don't find it to be a good assumption that any of them who has voted for a Republican would be universally "terrible" on these issues. Even any of them who has ever registered as a Republican.

Or are you talking about the Republicans they voted for? Those don't necessarily need to have been successful, certainly not necessarily successful on a national scale, in order for a potential SC nominee to have voted for them.

I'm confused about the relevance of the assertion, if you're just saying that national Republican politicians are terrible on these issues. Unless you think that all SC nominees are "national politicians?" A lot of them are judges who have been judges for a number of years, which is distinct from being a "national politician."
posted by internet fraud detective squad, station number 9 at 4:25 PM on February 25, 2016 [1 favorite]


All I was saying is for values of "people who a Democratic President should consider for SCOTUS"; "no one who has ever identified as Republican" would be a simple screen to start with under normal conditions, for whatever "normal" means anymore. If you continue reading from where I said that, I think I made clear than this nomination hardly qualifies as normal, and Sandoval could have been a plausible choice under the circumstances (provided that Obama could have been assured he actually is one of the mythical moderate unicorn Republicans who holds reasonably liberal views on at least one issue, which does appear to be the case on abortion rights with Sandoval. Hopefully). That might justify the pick to move the center of the court from Kennedy, ever, ever, so slightly to the left to Sandoval, as opposed to maintain or more likely worsen the status quo with whoever Trump would pick.

As a separate point, for values of "National Republicans", and "people who do not hold monstrous political views absolutely unacceptable by any Democrats under any other circumstance than outlined above", I'm confident in saying the Venn diagram would be thus- O O.
posted by T.D. Strange at 5:27 PM on February 25, 2016


OK, again, I'm curious about how you're defining "national Republicans." Is anyone who might be considered for a supreme court nomination, Who has ever identified as a Republican necessarily a national Republican?
posted by internet fraud detective squad, station number 9 at 5:38 PM on February 25, 2016 [1 favorite]


Well, in the interest of curtailing this pointless definition exercise, let's just go with "anyone who has ran ever will run for federal office". There, "National Republicans".
posted by T.D. Strange at 5:44 PM on February 25, 2016


And if your next quibble is "but the SCOTUS doesn't have to run", lets just agree that SCOTUS nominations are equivelent to a campaign for federal office.
posted by T.D. Strange at 5:46 PM on February 25, 2016


It's not really a quibble, a politician and a SC nominee are extremely different and treating them like they are the same, and thus, using assumptions that make sense for someone running for national office in order to judge a nominee's likely policy positions (or anything about a likely Supreme Court nominee), is actually kind of ridiculous. It's very different. Trying to conflate them for the purpose of making your argument stronger has the opposite effect. That does not mean that there are not judges who have terrible policy positions. Or attorneys who have terrible policy positions. Those people certainly exist. But you can't identify them by considering any affiliation of theirs with the Republican Party as having a signaling affect that is equivalent to running for national office on a Republican ticket

I don't mean to pick on you, certainly you are not the only person who has expressed similar ideas in this thread. But they are pretty terrible ideas.
posted by internet fraud detective squad, station number 9 at 5:52 PM on February 25, 2016 [3 favorites]


Well, I envy the naivety that allows you to pretend the Supreme Court is anything other than other another political branch.
posted by T.D. Strange at 5:58 PM on February 25, 2016


And if your next quibble is "but the SCOTUS doesn't have to run", lets just agree that SCOTUS nominations are equivelent to a campaign for federal office.

Yeah, this isn’t true. They involve politics, certainly, but they are very different politics.
posted by Going To Maine at 6:12 PM on February 25, 2016


I mean, unless your backyard is full of Sri Srinivasan posters…
posted by Going To Maine at 6:14 PM on February 25, 2016


"It's not really a quibble, a politician and a SC nominee are extremely different and treating them like they are the same, and thus, using assumptions that make sense for someone running for national office in order to judge a nominee's likely policy positions (or anything about a likely Supreme Court nominee), is actually kind of ridiculous. "

No, it's not. Don't conflate epistemological humility with solipsistic naivety.

It's very different. Trying to conflate them for the purpose of making your argument stronger has the opposite effect. That does not mean that there are not judges who have terrible policy positions. Or attorneys who have terrible policy positions. Those people certainly exist. But you can't identify them by considering any affiliation of theirs with the Republican Party as having a signaling affect that is equivalent to running for national office on a Republican ticket "

Their affiliation with the Republican party inherently implies that they agree with the Republican platform more often than not. You're right that it doesn't imply a complete congruence, but you're treating it as if it doesn't have any significant predictive value at all on legal policy preferences, which ignores the very point of political parties. Given the national Republican platform in its multifaceted awfulness, the more a given individual identifies with that platform, the more likely they are to hold abhorrent positions on any number of real issues that make direct, significant impacts on American lives.

So, equivalent? No. Indicative enough that it's a reasonable position to start with the presumption of their holding enough abhorrent views to disqualify them and place the burden on those who would advocate for Republicans to be nominated to demonstrate their exception, as well as explain why they would chose to identify with a party that publicly holds abhorrent and catastrophic views on any number of issues? Yes.
posted by klangklangston at 1:08 AM on February 26, 2016 [4 favorites]


I don't think party identification matters (although these days perhaps it matters more than it used to). Judicial philosophy is much more important. Does the nominee believe in a living constitution? Has the nominee had exposure to the different parts of the system? Is the nominee more of an "activist" or a compromise-broker? Is the nominee willing to pull an O'Connor and cobble things together to reach a desired outcome, or more inclined to resist that approach? Would the nominee use the position as a way of gathering power and influence (ahem Kennedy).

All of these are tough to figure out, though. Some of it you can't predict even if you tried, because sometimes the context of a situation is going to shape the judge. Blackmun after the Roe backlash seemed to change his mind about a lot of things. Warren was one of the main people who pushed for Japanese internment in California, served as a Republican Governor, and then entered the Court and became the Warren we're more familiar with. Brennan was put on the Court in part because he was Catholic and because the guy scoping it out for Eisenhower thought he seemed fairly conservative (bahaha), despite being a Democrat.
posted by sallybrown at 8:02 AM on February 26, 2016 [1 favorite]


To further clarify: you can use party identification as a proxy for a lot of important questions (originalism vs. living constitution), but it's more valuable to consider those underlying qualities, because they don't always map on to party, and some have very little to do with party (willingness to set forth a new legal standard, for example).
posted by sallybrown at 8:05 AM on February 26, 2016 [3 favorites]




Oh, that is lovely. This Supreme Court has been especially hostile to the idea of customers suing businesses alone or in class actions -- hopefully the assorted bad actors pushing to solidify and expand mandatory arbitration (previously) are just as spooked.
posted by Holy Zarquon's Singing Fish at 1:39 PM on February 26, 2016


It's one dimensional go. Very hard to play.
A strange game.
The only winning move is not to move along the x axis.

posted by blueberry at 7:28 PM on February 26, 2016 [1 favorite]


The year is 2046. After decades of each party refusing to confirm the other's nominees, the Supreme Court consists entirely of Elena Kagan.
This needs to be put together a’la the intro to Buck Rogers.
posted by blueberry at 7:36 PM on February 26, 2016 [5 favorites]


Politico: GOP groups prepare to unload on Obama SCOTUS pick

They're going to go all-out on mudslinging against whoever he ends up nominating in hopes of convincing people that their mindless obstructionism is actually principled opposition to the Least Qualified, Most Liberal Supreme Court Pick In The History Of The United States.
posted by Holy Zarquon's Singing Fish at 5:25 AM on February 27, 2016 [2 favorites]


No, it's not. Don't conflate epistemological humility with solipsistic naivety.

What does this even mean? The more conclusory you get, the more likely you are to be wrong (it's an annoying type of bluff). I think this is supposed to be a fancy way of calling me stupid and/or naive, but I'm not sure because it's basically meaningless.

Have you ever seen a supreme court nomination? Have you ever seen a presidential campaign? I cannot believe that you seriously think they require the same things of the people involved.
posted by internet fraud detective squad, station number 9 at 8:42 AM on February 27, 2016 [5 favorites]


In the not too distant future... 2046 AD...
posted by Evilspork at 1:08 PM on February 27, 2016 [1 favorite]


Thanks for posting that link (Scalia's death prompts Dow to settle anti-trust case for $835 million), nubs.
posted by flapjax at midnite at 8:04 AM on February 28, 2016


Don't conflate epistemological humility with solipsistic naivety

Gaddam, I gotta go to my dictionary now...
posted by flapjax at midnite at 8:06 AM on February 28, 2016




I read an article about the travels and alliegances of Scalia. It sure looked like he took about 25 gratis trips per year? Hong Kong, everywhere seemingly. Sure seems like a single man's lifestyle.
posted by Oyéah at 9:22 AM on February 29, 2016


Don't conflate epistemological humility with solipsistic naivety

Moral notions imply attributes to substances which exist only in relational duality. Not as an essential extension of ontological existence.
posted by maxsparber at 11:01 AM on February 29, 2016


IMMANENTIZE THE ESCHATON
posted by Chrysostom at 11:36 AM on February 29, 2016 [3 favorites]


"What does this even mean? The more conclusory you get, the more likely you are to be wrong (it's an annoying type of bluff). I think this is supposed to be a fancy way of calling me stupid and/or naive, but I'm not sure because it's basically meaningless."

It means don't confuse recognizing the limits of certainty in what we can know with the idea that because we can't be certain, that implies that we can't make reasonable inferences about policy preferences and the desirability of them from party preference. It's not calling you stupid, it's pointing out that you've extended a reasonable general statement to the point where it becomes counterproductive.

Have you ever seen a supreme court nomination? Have you ever seen a presidential campaign? I cannot believe that you seriously think they require the same things of the people involved."

You've moved the goalposts here, and I think have confused yourself in the process.

The argument was that, in reference to the floating of Sandoval, that anyone who is identified as a Republican is likely to be terrible on issues of labor, civil rights and equality questions. You objected on the idea that basing a prediction of someone's judicial behavior on their record of running for office is unfair, because the jobs and requirements are very different. Which they are. However, that doesn't mean that it's not a reasonable bit of information to infer from, and that the inference that anyone who has run as a Republican is more likely than not to be terrible on e.g. labor, etc. is unreasonable.

It's not unreasonable to assume that partisan identification implies broad agreement with those partisan goals, nor is it unreasonable to assume that judicial decisions are based at least somewhat on partisan philosophical agreement.

Basically, you're arguing that because we can't be certain, we can't set a cut-off at "more likely than not." Arguing that running for office is different than serving on the bench is insufficient to make your case, and getting all puffed up and indignant doesn't make your argument stronger.

And since you're the one making the argument that contradicts the basic assumptions of pretty much everyone involved in the nominating processes — we wouldn't have McConnell arguing against any hearings if the general sense wasn't that the judicial practice of a given nominee could be largely inferred from the partisans supporting them — you bear the burden of demonstrating that in past judicial nominations, the majority of them have not acted consistently with the political goals of the parties that nominated them, especially in the last 30 years or so.