“It Will Be Easy To Replace Antonin Scalia”: In Terms Of Quality In A Supreme Court Justice, He Will Be Easy To Replace
Antonin Scalia’s unexpected death came as a shock to me—and not just because I had plans until recently to go hiking this weekend in Big Bend, Texas, where the justice died. Scalia has been a fixture on the Supreme Court for my entire legal career, and he didn’t seem to be going anywhere. During Barack Obama’s presidency, he hunkered down: no way would a Democrat appoint his successor. The right adored him as much as the left reviled him. He was the Court’s most colorful personality since William “Wild Bill” Douglas retired in 1975. Scalia’s family will miss him, and they are surely hurting right now. They have my sympathies. But as the tributes roll in and Scalia’s impact on the Court comes into focus, I predict a consensus will emerge that he has damaged the institution he served for so many years.
It is ironic that Scalia died during this particular presidential campaign, because he strongly resembled two leading Republican hopefuls: Donald Trump and Ted Cruz. Like Trump, Scalia was larger than life. He took his elbows with him wherever he went. The more outrageous his rhetoric, the more his fans lapped it up. Scalia trashed his colleagues’ writing, calling it “preposterous” and compared it to “the mystical aphorisms of the fortune cookie”; their reasoning was “patently incorrect” and “transparently false.” With his low punches and salty talk, Scalia coarsened the Court—just as Trump has coarsened the presidency. As the much more restrained John Paul Stevens said to one of Scalia’s biographers, “I think everybody respects Nino’s ability and his style and all the rest. But everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position.”
Like Ted Cruz, Scalia possessed a rare intellect. (Cruz, a former Supreme Court law clerk and appellate lawyer, was a big fan.) Scalia was for a time the Court’s most persuasive voice on technical matters like jurisdiction and procedure. He was an unquestionably talented writer. No justice had a quicker wit. Yet, also like Cruz, Scalia proved ineffective within the constraints of an organization, where cooperation and pragmatism tend to produce results. His strident behavior alienated the people around him. “Screams!” wrote Justice Harry Blackmun on a draft Scalia dissent in 1988. “Without the screaming, it could have been said in about 10 pages.” When a very junior Scalia commandeered an oral argument in 1987, Justice Lewis Powell whispered to a colleague on the bench, “Do you think he knows that the rest of us are here?” Scalia seemed to make a special point of picking on Anthony Kennedy, the Court’s swing voter for the past ten years, and an essential member of any 5-4 coalition. His inability to hold his fire or to build consensus meant that he was assigned few important majority decisions in the later years of his career.
I will remember Scalia mainly for the ugliness that permeated his opinions. He once wrote with astonishing callousness that it is not unconstitutional to execute an innocent person if that person has received a fair trial. He described affirmative action as “racial discrimination,” and mocked the notion that it could help students achieve “cross-racial understanding.” (No one squeezed more sarcasm out of a quotation mark.) A devout Roman Catholic, Scalia harbored a particular scorn for “the homosexual agenda,” writing in a paper-thin third-person: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
Scalia had been slipping lately. He made a spectacle of himself before journalists, flipping his chin at them and giving needlessly provocative speeches. He openly flouted the Court’s recusal traditions, going on a hunting trip with Dick Cheney and then refusing to recuse himself from a suit against the vice president. He engaged in an unseemly public spat with Judge Richard Posner, going so far as to call Posner a liar after Posner panned Scalia’s latest book. The invective in his opinions and his behavior at oral argument had become truly outrageous, and caused many a citizen to associate the Supreme Court with cheap partisan point-scoring. It has been a long fall for what had been one of the most trusted institutions in government.
Scalia was a character, and he will be hard to forget. But in terms of quality in a Supreme Court justice, he will be easy to replace.
By: Michael McDonnell, Contributor, Ten Miles Square, The Washington Monthly, February 14, 2016
“Obama Rejects The Rejectionists”: Scalia’s Passing Starts A Court Fight For The Ages
In most presidential elections, Supreme Court nominations are a major issue for elites and a substantial concern for significant parts of the conservative movement. Other voters usually see the future makeup of the court as a side matter, or not essential to their decisions at all.
Justice Antonin Scalia’s death on Saturday will change this.
The issue of conservative judicial activism had already begun to take hold among liberals because of a series of fiercely ideological and precedent-shattering 5-to-4 decisions.
You read that right: After decades during which conservatives complained about “liberal judicial activism,” it is now conservatives who are unabashed in undermining progressive legislation enacted by the nation’s elected branches. Scalia will be remembered fondly on the right as the brilliant exponent of the theory of “originalism” that provided a rationale — or, in many cases, a rationalization — for decisions that usually fit conservative ideological preferences.
In 2010, Citizens United v. FEC rewrote decades of precedent on Congress’ power to regulate how campaigns are financed, facilitating a flood of money into elections from a small number of very wealthy Americans. Three years later, Shelby County v. Holder ripped the heart out of the federal government’s enforcement power in the Voting Rights Act. Last week, conservatives on the court halted the implementation of President Obama’s Clean Power Plan, his central initiative on climate change.
This is merely a partial list. The court’s conservatives have also regularly undercut the power of unions and the ability of citizens to wage legal battles against corporations.
Such decisions already had the potential of broadening the range of progressive constituencies invested in making the court a major election issue, including political reformers, African Americans, environmentalists and organized labor.
But Scalia’s death means that Obama or his successor — if that successor is a Democrat — could overturn the current conservative majority on the court, which could lead it to revisit many of the most troubling decisions of recent years.
And Republicans did themselves no favors in the coming argument by moving in a hard political direction even before most of the tributes to Scalia had been published — and even before the president had actually picked someone: Senate Majority Leader Mitch McConnell (R-Ky.) proclaimed that no Obama nominee would be considered, period.
“The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new president.”
Republicans claimed precedent for ignoring court appointees from presidents on their way out the door. During Saturday night’s debate in South Carolina, Marco Rubio said that “it has been over 80 years since a lame-duck president has appointed a Supreme Court justice.” Ted Cruz made a similar point.
Well. A Senate controlled by Democrats confirmed President Reagan’s nomination of Anthony Kennedy on a 97-0 vote in February 1988, which happened to be an election year. By what definition was Reagan not a lame duck when he put Kennedy forward on Nov. 11, 1987?
Obama rejected the rejectionists. He said Saturday he would name a new justice and that there would be “plenty of time . . . for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.”
My hunch is that Obama will try to put the Republicans’ obstructionism in sharp relief by offering a nominee who has won support and praise from GOP senators in the past. Three potential candidates who fit these criteria and won immediate and widespread mention were Merrick Garland and Sri Srinivasan, both judges on the U.S. Court of Appeals for the District of Columbia, and Jane Kelly, a judge on the 8th Circuit. (I should note that Garland is a dear friend of long standing.)
Whatever choice Obama makes, he will try to make it as hard as possible for Republican senators — especially those struggling for reelection this year in blue or purple states — to claim that he had picked an ideologue. Obama could also argue he had deferred to the Republicans’ Senate majority by offering a candidate whom many of them had supported in the past.
An extended court fight would allow progressives, once and for all, to make clear it is their conservative foes now using judicial power most aggressively. The partisan outcome of this year’s election just became far more important. This fall, Americans will not just be picking a new chief executive. They will be setting the course of the court of last resort for a generation.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, February 14, 2016
“Scalia’s Boring Legacy”: He Simply Became A Reliable Tool Of Retrograde Social Conservative Orthodoxy And Corporate Power
I was determined yesterday not to comment on Justice Antonin Scalia’s legacy on the Supreme Court, choosing to focus instead on the political implications of the vacancy. I remain committed to that, in large part because the man only barely passed away and I feel that anything I might say about his impact on law, culture and jurisprudence would be tinged with inappropriate (?) negative passion I might later regret.
Fortunately, I don’t have to. Back in 2014 here at Washington Monthly, Michael O’Donnell wrote a fantastic book review of Bruce Allen Murphy’s “Scalia: A Court of One,” that says most of it for me:
Somewhere in the mid-2000s, Scalia ceased to be a powerhouse jurist and became a crank. He began thumbing his nose at the ethical conventions that guide justices, giving provocative speeches about matters likely to come before the Court. He declined to recuse himself from cases where he had consorted with one of the parties—including, famously, Vice President Dick Cheney. He turned up the invective in his decisions. His colleagues’ reasoning ceased to be merely unpersuasive; it was “preposterous,” “at war with reason,” “not merely naive, but absurd,” “patently incorrect,” and “transparently false.” More and more, he seemed willing to bend his own rules to achieve conservative results in areas of concern to social conservatives, like affirmative action, gay rights, abortion, gun ownership, and the death penalty. Above all, Scalia stopped trying to persuade others. He became the judicial equivalent of Rush Limbaugh, who has made a career of preaching to the choir. But Limbaugh is not merely a shock jock; he is also a kingmaker. Scalia’s position on the bench precludes any such influence. As a result, he has more fans than power.
The conservative movement is trying to treat Scalia as a giant of law and one of America’s greatest and most influential jurists. I’m not so sure about that. His position on the court and his votes in some crucial 5-4 decisions have obviously made a gigantic impact, but it’s not at all clear that his arguments will have had generations-long precedent-carrying weight. Particularly toward the end of his career he simply became a reliable tool of retrograde social conservative orthodoxy and corporate power. Scalia ceased to be interesting because you always knew exactly where he would stand, and that every year he would say something eyebrow-raisingly nasty and clueless about evolution, the sexual revolution or some similar topic. In that sense, I would argue that John Roberts has actually been more interesting and influential recently because one can at least speculate on potentially unconventional arguments and stances he might take.
In the end, what many characterized as Scalia’s incisive wit and questioning simply became boring, because it was always in the service of the same agenda, rendering it devoid of truly honest insight. Scalia simply became as boring as your conservative uncle at Thanksgiving. As O’Donnell says:
Scalia’s fall has been loud and it has been public. He is the Court’s most outspoken and quotable justice, and whether he is flicking his chin at reporters or standing at the lectern attacking secular values, he makes headlines. So when he was passed over for the position of chief justice in 2005, the legal world noticed. President George W. Bush had cited Scalia as well as Clarence Thomas when asked as a candidate to name justices he admired. Yet when Rehnquist suddenly died, Bush did not seriously consider elevating Scalia. “Nino” had rarely demonstrated leadership in assembling or holding together majorities; he had alienated every one of his colleagues at one point or other. His flamboyant antics off the bench might compromise the dignity of the office of chief justice. He would be the devil to confirm. Bush nominated instead John Roberts, an equally brilliant but far more disciplined judge, and one who was better suited to the responsibilities of leadership. After that, Scalia stopped playing nice and started using real buckshot.
I understand and can sympathize with how upset conservatives are about their loss and about the potential for the shifting of the ideology of the court. But let’s not pretend that the court lost a legal giant on the level of Brandeis, Holmes or Marshall. It didn’t.
By: David Atkins, Political Animal Blog, The Washington Monthly, February 14, 2016
“Fulfilling Their Constitutional Duties”: On SCOTUS, Pressure Falls On Endangered GOP Senators
All corners of the Republican Party have made themselves very clear: they intend to, in Donald Trump’s words, “delay, delay, delay” the confirmation of Antonin Scalia’s replacement on the Supreme Court until after the 2016 election. Ted Cruz has signaled his intention to lead a blockade, and Mitch McConnell intends to run a blockade.
All of this would be unprecedented, despite conservative protestations to the contrary. Conventional wisdom seems to suggest that McConnell can hold the Supreme Court nomination hostage for the whole year. But is that true?
It’s not necessary for the entire GOP to confirm the nominee. It only requires a few GOP Senators to join with the Democrats to fulfill their Constitutional duties. And as it turns out, there are quite a few Republican Senators in blue states who would be pilloried as intransigent obstructionists if they refused to confirm commonsense consensus nominees.
Among these Senators would be Senator Mark Kirk in Illinois, who is already Democrats’ primary target for a Senate takeover. Wisconsin’s Ron Johnson is less ideologically likely to cross the aisle, but with Russ Feingold already seeming likely to defeat him in November, it’s not clear that Johnson can afford to give Democrats yet another cudgel with which to attack him. The same goes for Senator Kelly Ayotte in New Hampshire, Pat Toomey in Pennsylvania and Rob Portman in Ohio.
President Obama will certainly nominate a number of popular, reasonable and consensus nominees, from recently confirmed Homeland Security Secretary Jeh Johnson to D.C. Circuit Court of Appeals Judge Sri Srinivasan. With each attempted and withdrawn nomination the Republican Party would look worse as a whole, but the careers of the specifically imperiled Senators would be particularly threatened–and with them the Republican Senate majority itself.
Will Ayotte, Kirk and their colleagues kowtow to McConnell and Cruz and likely eliminate their ability to hold their seats, or will they do the right thing, perform their constitutional duty and protect their Senate careers?
Time will tell.
By: David Atkins, Political Animal Blog, The Washington Monthly, February 14, 2016
“Republicans’ Coup de Grace On Voting Rights?”: Putting The Interests Of The Republican Party Over The Interests Of Voters
Last week the Supreme Court heard oral arguments in a case called Evenwel v. Abbott. The case involves an issue of increasing importance to American politics: congressional districting. It got to the Supreme Court because conservative litigators with a successful track record of fighting against the right to vote are trying to turn the logic of pro-voter rights decisions on their head. And it’s very possible that they may succeed again.
This most recent battle in the voting rights war involves two of the Warren Court’s most important decisions. One of the tactics that state legislatures used to disenfranchise African-Americans was to draw district lines (or refuse to revise them) in ways that left minority voters massively underrepresented. In Alabama in 1964, for example, some counties included 40 times more people than others. In Baker v. Carr and Reynolds v. Sims, the Supreme Court held that such schemes were illegal. States were required to adhere to a “one person, one vote” standard when apportioning their legislatures. Combined with robust enforcement of the Voting Rights Act, these landmark cases helped to end Jim Crow disenfranchisement schemes.
Perversely, this lawsuit hopes to use these decisions to turn back the clock and dilute the representation of minority voters. The theory of the lawsuit is that Texas violated the Equal Protection Clause when it drew its district lines based on total population rather than on the population of voters. The state, according to the theory, should only be able to conduct apportionment according to the number of eligible voters.
If adopted, the theory presents an obvious practical problem. Total population is measured with reasonable reliability by the Census. Eligible voters are much harder to measure, not least because the numbers change every election. (What should be counted — presidential election years? Off years? State elections? Some combination?) The discretion the measure would leave to legislators leaves the process open to more of the kind of manipulation that Reynolds v. Sims tried to minimize. Plus, it just seems illogical for a state’s representation in Congress to be based on total population, but its districts drawn by eligible voters.
Which brings us to the even bigger problem with the theory: In most cases, the effect of the rule change would be to overrepresent white voters and underrepresent minority voters. As Slate‘s Dahlia Lithwick puts it, “if the plaintiffs win this appeal, power will shift markedly from urban voters to rural voters and to white and Republican districts over minority and Democratic ones.” To read the Equal Protection Clause to not merely permit but require the under representation of minority voters is, to say the least, perverse.
That the argument should be indefensible doesn’t mean that it can’t win. The group bringing this lawsuit scored a major anti-voting rights victory with the 2013 case Shelby County v. Holder. In that case, a bare majority of the Supreme Court gutted the Voting Rights Act. Even worse, it did so by arguing that the explicit powers given to Congress to enforce the 15th Amendment were trumped by an alleged “equal state sovereignty” principle, an idea without support in the text of the Constitution or Supreme Court precedents not written by John Roberts, save for the infamous Dred Scott v. Sanford. If the Roberts Court is willing to cut the heart out of the most important civil rights statute since Reconstruction based on arguments that feeble, it’s hard to imagine why they wouldn’t put the interests of the Republican Party over the interests of voters in Evenwel v. Abbott.
That said, oral argument did not clearly indicate how the case will come out. The Court’s Democratic nominees were predictably hostile. Anthony Kennedy, the likely swing vote, appeared curious but non-committal to the plaintiff’s novel theory. Even if the Court doesn’t buy the argument that the Constitution requires the states to use voters rather than total population, if it signals that this kind of districting is permitted the consequences could be dire.
This case has to be seen as part of a larger political struggle. The Republican Party faces a problem: Demographic changes are making its overwhelmingly white voter base a smaller part of the population. This year, their presidential primary, in which the major candidates try to out-xenophobe one another, will make this problem worse rather than better. To combat this, Republican states have adopted various measures to suppress minority voters — if you can’t attract their votes, keep ‘em from the ballot box or try to make their votes count less through gerrymandering. Their allies in the Supreme Court might well use this case to assist in this vote-suppression effort once again.
By: Scott Lemieux, The Week, December 15, 2015
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