“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
“Delivering The Promised Conservative Paradise?”: The Supreme Court Is Poised To Deliver Conservatives A String Of Big Victories
The Supreme Court’s new term begins today, and it brings with it a paradox. On one hand, the Court is poised to deliver conservatives a string of sweeping, consequential victories on issues covering a wide swath of American life. On the other, conservatives are up in arms about how they’ve been betrayed by the Court, and particularly by Chief Justice John Roberts, despite the fact that Roberts has in all but a couple of cases been as reliable a conservative vote as they could have hoped for.
Let’s look at what’s coming. Among the cases the Court will be hearing are an affirmative action case involving the University of Texas, a case asking whether congressional districts must adhere to a “one person, one vote” standard, a case testing state restrictions meant to shut down abortion clinics, a case asking whether public-sector unions can require non-members who benefit from their collective bargaining to contribute to those efforts, and yet another lawsuit challenging the Affordable Care Act’s contraception provision.
While a couple of them may be in doubt, it’s entirely possible that by the time this term ends next June, the Court will have driven the final stake into affirmative action, struck a fatal blow against public-sector unions, enhanced Republican power in legislatures by reducing the representation of areas with large Hispanic populations, given a green light for Republican-run states to make abortions all but impossible to obtain, and undermined the ACA. Even if one or two of those don’t go how Court observers expect, it’s almost certainly going to be a great term for Republicans.
And while they’ve had a couple of recent high-profile defeats at the Court, conservatives have enjoyed a conservative majority for a couple of decades now. Yes, Anthony Kennedy sometimes joins with liberals, as he did in the case legalizing same-sex marriage. But just in the last few years, they’ve seen the doors of campaign finance thrown open to unlimited spending by corporations and billionaires; the Voting Rights Act gutted; affirmative action all but outlawed; an individual right to own guns created for the first time in American history; corporations granted religious rights to exempt themselves from laws they don’t like and sectarian prayer allowed at government meetings; unions undermined and employment discrimination suits made more difficult; and a whole series of less well-known decisions that enhance the power of the powerful, whether it’s the government or corporations.
Nevertheless, when you hear conservatives talk about the Court, they don’t say, “We need to make sure we get more conservative justices to keep winning.” Instead, they say, “We’ve been betrayed!” So what’s going on?
There are a couple of answers. The first is that they’re demanding not just a record of wins, but absolute perfection. They want not justices who will bring a conservative philosophy to the Court, but justices who will never stray from whatever it is the Republican Party wants at a particular time. The recent decision in King v. Burwell is a perfect example: the lawsuit itself was a joke, based on a series of claims about the Affordable Care Act that ran from the clearly false to the laughably ridiculous. When John Roberts sided with the majority to dismiss it — despite a long record of being on the “right” side of all the cases I mentioned above, plus many more — they declared him to be an irredeemable traitor.
The second reason is that narratives of betrayal are central to how conservatives understand history. Whenever events don’t turn out as they would like, whether it’s a foreign war or a lost election or a societal evolution, the story is always the same: We were betrayed, either by our opponents or by the people we thought were our allies. Was the Iraq War a terrible idea? No, we had it won — until Barack Obama betrayed us by pulling out. Why was George W. Bush so unpopular? Because he betrayed conservative principles by not cutting spending more, just like his father betrayed us by raising taxes (while the younger Bush was still president, longtime conservative activist Richard Viguerie wrote a book entitled “Conservatives Betrayed: How George W. Bush and Other Big-Government Republicans Hijacked the Conservative Cause).” As Digby memorably wrote, “Conservatism cannot fail, it can only be failed. (And a conservative can only fail because he is too liberal.)” And it goes back as far as you want. Why did the Soviet Union come to dominate Eastern Europe? Because FDR betrayed us at Yalta.
It isn’t that there’s never any truth in this story, particularly when it comes to the Court. David Souter, for instance, turned out to be a genuine liberal, not at all what Republicans expected when he was appointed by George H. W. Bush. But they’ve gotten so used to the betrayal narrative that they place even a single setback into it. Which may explain why conservative opinions of the Court have changed so dramatically in recent years. According to Pew polls, in 2008, 80 percent of Republicans approved of the Supreme Court, compared to 64 percent of Democrats. By 2015, the views of Democrats hadn’t changed — their approval was at 62 percent. But Republican approval had fallen to 33 percent, despite all they had won at the Court over that time. A full 68 percent of conservative Republicans call the Court “liberal,” an idea that is absurd by any objective measure, but one that is regularly fed by conservative media and Republican politicians.
To be clear, Republicans are right to focus on the Supreme Court during the campaign, and Democrats ought to as well. As I’ve argued before, there may be no single issue more consequential for America’s future in this election than what will happen to the Supreme Court in the next four or eight years. But Republicans aren’t just arguing that it’s important for them to elect a Republican so they can get friendly justices, they’re arguing that even Republican presidents and Republican-appointed justices can’t be trusted not to turn into judicial Benedict Arnolds.
If you’re someone like Ted Cruz, this idea fits in nicely with the rest of your message, at least during the primaries: the real enemy isn’t the Democrats, it’s the feckless and unreliable Republican establishment that has failed to deliver the conservative paradise we were promised. Which is why no one is louder in condemning Roberts than Cruz (who supported Roberts wholeheartedly when he was nominated). But I wonder, will they change their tune when the Court gives them one victory after another over the next nine months?
By: Paul Waldman, Senior Writer, The American Prospect; The Plum Line, The Washington Post, October 6, 2015
“The Perils Of A Small-Tent Party”: An ‘Archie Bunker’ Posture In A ‘Modern Family’ World
In the last national election cycle, the Republican losses obviously counted, but so too did the way in which they lost. GOP candidates, party officials later acknowledged, were catering to an increasingly narrow part of the population. The Republican Party’s base was getting older, whiter, and male-dominated.
GOP strategists were determined to change the party’s focus. They failed spectacularly.
Steve Schmidt, who served as Republican Sen. John McCain’s top strategist in the 2008 presidential election, said it’s problematic for the GOP to be seen as intolerant, particularly with moderate voters who help sway the general election.
“Of course it’s worrisome if you have a party that’s perceived as anti-Latino, anti-Asian, anti-gay, intolerant of Muslims,” Schmidt said.
Schmidt’s correct that the party’s problems are exacerbated by perceptions of intolerance and exclusivity, and this doesn’t just alienate Latinos, Asians, Muslims, and the LGBT community. It also has the effect of pushing away white mainstream voters who start to see Republicans as wildly out of step with a diverse, modern nation.
On Friday, for example, President Obama nominated Eric Fanning as the next Secretary of the Army. No one has questioned Fanning’s qualifications, but GOP presidential hopeful Mike Huckabee condemned the nomination because Fanning is gay. “It’s clear President Obama is more interested in appeasing America’s homosexuals than honoring America’s heroes,” the Republican said, adding, “Homosexuality is not a job qualification. The U.S. military is designed to keep Americans safe and complete combat missions, not conduct social experiments.”
It’s an “Archie Bunker” posture in a “Modern Family” world.
Of course, the broader point is that the campaign to create a small-tent party isn’t limited to Huckabee. Ben Carson doesn’t think Muslims can be president. Donald Trump vowed last week that he’s “going to be looking into” non-existent Muslim “training camps.” Bobby Jindal said this morning that a Muslim could be president, but only if he or she took the oath of office on a Christian Bible.
It’s against this backdrop that many Republicans want to shut down the government over Planned Parenthood funding. And condemn the Black Lives Matter movement while ignoring the need for a Voting Rights Act repair. And push over-the-top talking points about “anchor babies” and mass deportations.
After the 2012 cycle, Republican officials concluded, “Our party is too small.” To which the GOP’s driving forces spent three years responding, “Let’s make it smaller and more reactionary.”
All of which brings us back to that Steve Schmidt quote: “Of course it’s worrisome if you have a party that’s perceived as anti-Latino, anti-Asian, anti-gay, intolerant of Muslims.”
The GOP presidential nominating process has several months to go. There’s every reason to believe the most “worrisome” developments are still to come.
By: Steve Benen, The Maddow Blog, September 22, 2015
“Caring About The Political Fortunes Of The Causes”: If Bernie Sanders Wins, Centrist Liberals Are Morally Obligated To Support Him
In modern electoral politics, moderate and centrist Democrats are well-known for browbeating leftists with the lesser-evil argument. Democrats might not be particularly concerned about, say, child poverty, but they’re still better than Republicans on just about any issue you care to name. Obama might drone strike American citizens, but at least he doesn’t start full-blown wars of aggression that kill hundreds of thousands of people.
And that’s true, so far as it goes. However, there is a small but distinct possibility that moderates might find themselves on the receiving end of such an argument in the next election, if a leftist like Bernie Sanders wins the presidential nomination. As Matt Bruenig points out, they don’t seem to like this possibility. But they better be prepared for it.
For an example of a Democratic partisan, here’s Mark Kleiman explaining why he doesn’t agree with “emo-progs” (i.e., left-wing critics of Obama), in a post from a couple years ago entitled “Confessions of an Obamabot”:
What the emo-progs refuse to remember — now, and in the run-up to the 2010 election — that I never for a moment forget is that, whatever the failings of Barack Obama the human being, “Barack Obama” the political persona is the leader of the Democratic Party (and thus, effectively, of the entire progressive coalition) in a battle with a well-organized, well-funded, and utterly dedicated plutocrat-theocrat-racist-misogynist-obscurantist-ecocidal Red Team, whose lunatic extremism is now actually a threat to republican governance. If I’m reluctant to help Rand Paul and Glenn Greenwald add NSA! to Benghazi! and IRS! and Solyndra! and all the other b.s. pseudo-scandals designed to make Obama into Richard Nixon, it’s not because I’m in love with “The One:” it’s because, for good or ill, the political fortunes of the cause I care about are now tied to Obama’s political fortunes. [Washington Monthly]
Interpreted narrowly, this is a reasonable point. It is very often taken too far, of course — as with the people who blame the 97,000 Nader voters in Florida in 2000 for Gore’s loss of that state, instead of the 2.9 million who affirmatively voted for Bush. I would further add that Democrats should not always be supported without question. Centrist hack Democrats like Andrew Cuomo do not care about left-wing priorities like affordable housing and quality public transit — indeed he has actively worked against both. In Cuomo’s case, it is worth risking a potential loss in order to change the political incentives in New York at the state level.
Still, in America, tactical voting must always be a consideration. And for voters in swing states, that consideration is powerful indeed. Republicans really could do spectacular damage — just look at the smoking wreckage the last GOP president left.
The question is whether moderates are willing to swallow such an argument if Sanders manages to clinch the Democratic nomination. It’s still an extreme long shot, but it’s not completely out of the question.
After all, something similar happened in the U.K. just last week, with the election of Jeremy Corbyn as leader of the Labour Party. The reaction was not encouraging. Moderate liberals, like New Labourite Tony Blair, who all but begged his nation on hands and knees not to vote Corbyn (and probably added 10 points to Corbyn’s victory margin in the process), are furious. Some Labour MPs have reportedly even approached the Liberal Democratic Party about defecting.
Of course, that’s in the U.K., a genuinely multi-party democracy. There is less of an obligation to support Labour when the Greens or Scottish National Party could end up being part of a liberal coalition. In the U.S., there are only two real national parties, thus greatly strengthening any lesser-evil argument.
So unless moderate liberals’ arguments were 100 percent hypocrisy, should Sanders lock down the nomination, they will be obliged to support him. If they really care about the political fortunes of the causes they care about — ObamaCare, climate change, women’s rights, a higher minimum wage, keeping 27-year-old Heritage interns off the Supreme Court, etc. — they best start saying “actually, democratic socialism is good” in front of a mirror. They may need the practice.
By: Ryan Cooper, The Week, September 20, 2015
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